Affin Bank Berhad v Gauri A/P Alumalai (BA-24FC-716-06/2019)

1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA ORIGINATING SUMMONS NO. BA-24FC-716-06/2019 BETWEEN AFFIN BANK BERHAD … PLAINTIFF AND GAURI A/P ALUMALAI … DEFENDANT GROUNDS OF JUDGMENT INTRODUCTION

1. This is the Court’s Grounds of Judgment in respect of Enclosure 18, namely the Defendant / Administrator’s application for a stay of execution of the Order for Sale dated 26.09.2019 and all consequential execution proceedings arising therefrom, including the auction proceedings under Execution No. BA-38-2360- 07/2025.

2. The application was opposed by the Plaintiff. After having considered the Notice of Application, the affidavits filed by both parties, the Plaintiff’s Written Submissions, the Defendant’s 07/07/2026 14:34:00 BA-24FC-716-06/2019 Kand. 39 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Written Submissions, and the Defendant’s Submission in Reply, this Court dismissed Enclosure 18 and ordered costs of RM3,000.00 to the Plaintiff, subject to allocatur.

3. These are the reasons for that decision. BACKGROUND FACTS

4. The background facts are largely not in dispute.

5. The Plaintiff, as chargee, commenced foreclosure proceedings against the property held under Hakmilik PN 110102, Lot 95377, Mukim Petaling, Negeri Selangor Darul Ehsan, after default in repayment under the banking facilities extended to the Defendant.

6. On 26.09.2019, the Plaintiff obtained an Order for Sale in this action. It is common ground that the Order for Sale was not challenged by the Defendant at the material time.

7. The Defendant subsequently passed away on 01.06.2023. Thereafter, Syed Mohamed Mushtaq Mohamed obtained Letters of Administration dated 21.02.2024 and became the Administrator of the deceased Defendant’s estate. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

8. The Plaintiff then proceeded with execution proceedings under Execution No. BA-38-2360-07/2025 to realise the charged property by public auction.

9. Separately, the Administrator filed Originating Summons No. BA- 24NCvC-2788-12/2025 (“OS 2788”) seeking to set aside the Order for Sale dated 26.09.2019 on the ground, inter alia, that the said order was allegedly null and void for want of jurisdiction.

10. In the meantime, as the auction was fixed for 14.04.2026, the Administrator filed the present Enclosure 18 on 06.04.2026 seeking a stay of execution of the Order for Sale and the consequential auction proceedings pending the disposal of OS 2788 and, if necessary, until the final stage of appeal.

11. An interim order was granted on 13.04.2026.

12. Thereafter, on 24.04.2026, OS 2788 was dismissed with costs of RM10,000.00.

13. The Administrator then maintained the present stay application on the footing that an appeal would be filed, and subsequently informed the Court that a Notice of Appeal dated 20.05.2026 had been filed. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 THE RELIEF SOUGHT IN ENCLOSURE 18

14. In substance, the Administrator sought an order that all proceedings in relation to the Order for Sale dated 26.09.2019 and all subsequent execution proceedings, including the public auction under Execution No. BA-38-2360-07/2025, be stayed pending the full disposal of OS 2788 and, if necessary, until the final appellate stage.

15. Following the dismissal of OS 2788, the application was pursued as a stay pending appeal. PARTIES’ RESPECTIVE CONTENTIONS DEFENDANT / ADMINISTRATOR’S CASE

16. The Defendant / Administrator submitted that there are special circumstances justifying a stay.

17. First, it was contended that the property is the subject matter and substratum of the dispute and of the intended appeal. If the property were sold to a third party pending appeal, the appeal would be rendered nugatory.

18. Secondly, the Defendant argued that land has a special value in law, and in the present case the property was said to be a **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 residential and matrimonial property possessing sentimental value to the Administrator beyond mere market value.

19. Thirdly, it was argued that damages would not be an adequate remedy if the land were sold and the appeal later succeeded.

20. Fourthly, the Defendant contended that the Administrator has locus standi to bring the present application and to challenge the Order for Sale, having obtained Letters of Administration and having stepped into the shoes of the deceased for purposes of preserving the estate.

21. Fifthly, the Defendant argued that the Court ought not in a stay application to concern itself with the merits of the appeal or the correctness of the Order for Sale. The issue whether the Order for Sale was null and void was said to be a matter for the appellate forum.

22. Lastly, the Defendant argued that any technical objection to the form of the application, including the non-citation of the precise procedural provision, ought to be cured by the Court’s duty to do justice under Order 1A of the Rules of Court 2012. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 PLAINTIFF’S CASE

23. The Plaintiff opposed the application on both procedural and substantive grounds.

24. First, the Plaintiff argued that the stay application was premature at the time of filing because no Notice of Appeal had yet been filed, and there must first be a proper and valid appeal before a stay pending appeal could be entertained.

25. Secondly, the Plaintiff submitted that Enclosure 18 had become academic once OS 2788 was dismissed on 24.04.2026, and if the Administrator wished to seek a stay pending appeal, a fresh and proper application ought to have been filed.

26. Thirdly, the Plaintiff contended that Enclosure 18 was defective for failing to state the proper legal basis or provision under which the stay was sought.

27. Fourthly, and most importantly, the Plaintiff submitted that the Administrator had failed to establish any special circumstances justifying a stay.

28. The Plaintiff argued that the mere filing of an appeal, or the assertion that the Order for Sale was wrong or void, did not **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 constitute special circumstances. Those were matters going to the merits, which are irrelevant in a stay application.

29. The Plaintiff further submitted that it is a secured chargee with a valid and subsisting Order for Sale, and as a successful litigant ought not to be deprived of the fruits of its litigation.

30. The Plaintiff also contended that any loss suffered by the Defendant, even if the property were sold and the appeal later succeeded, could be compensated by damages, the Plaintiff being a reputable financial institution.

31. Finally, the Plaintiff argued that the challenge to the Order for Sale came too late, many years after the order was obtained, and that the present application was not founded on any exceptional circumstances. ISSUES FOR DETERMINATION

32. Having considered the parties’ cases, this Court is of the view that the following issues arise for determination: a. Whether Enclosure 18 was premature, academic, or defective in form; b. Whether the Defendant / Administrator had established special circumstances justifying a stay of execution; **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 c. Whether the Defendant’s contentions on the alleged invalidity of the Order for Sale and on locus standi were matters relevant to this stay application; and d. Whether the Court ought in the circumstances to exercise its discretion in favour of a stay. APPLICABLE LEGAL PRINCIPLES

33. The law relating to stay of execution is well settled. Section 73 of the Courts of Judicature Act 1964 provides that an appeal shall not operate as a stay of execution unless the court below or the appellate court so orders.

34. It is trite that a stay of execution is not granted as of right. A successful litigant should not ordinarily be deprived of the fruits of litigation unless the unsuccessful party demonstrates special circumstances warranting such interference.

35. In Syarikat Berpakat v Lim Kai Kok [1983] 1 MLJ 406, the Court reiterated that the discretion to grant or refuse stay is absolute and unfettered, but as a rule stay will only be granted if special circumstances are shown.

36. The general principle stated in Serangoon Garden Estate Ltd v Ang Keng [1953] 19 MLJ 116 is that the Court will not deprive a **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 successful party of the fruits of litigation until an appeal is determined unless the unsuccessful party can show special circumstances to justify it.

37. In Government of Malaysia v Datuk Haji Kadir Mohamad Mastan & Anor Application [1993] 3 MLJ 514, referring to Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, the Court recognised that “special circumstances” must be something exceptional and that the list of such circumstances is not closed.

38. The Federal Court in Kosma Palm Oil Mill Sdn Bhd v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 made clear that many factors may amount to special circumstances and that nugatoriness is a common example. However, that same case also emphasises that the relevant special circumstances must relate to the execution of the judgment and not merely to the correctness of the judgment appealed against.

39. Likewise, in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380, the Court of Appeal stated that special circumstances must go to the enforcement of the judgment and not to the validity or correctness of the judgment or the merits of the appeal.

40. The same principle appears in Chang Shu Hua v Goon Fook Hong [2008] 3 CLJ 429, where the Court held that strong grounds **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 of appeal, merits of appeal, or allegations directed at the correctness of the judgment do not, without more, constitute special circumstances.

41. In short, the principles are these: i. a stay is discretionary; ii. the burden is on the applicant; iii. a successful litigant is ordinarily entitled to enjoy the fruits of litigation; iv. special circumstances must be shown; v. the Court considers matters relevant to execution, not the merits of the substantive challenge. WHETHER ENCLOSURE 18 WAS PREMATURE, ACADEMIC, OR DEFECTIVE

43. The Plaintiff argued that Enclosure 18 was premature when filed because no Notice of Appeal had yet been filed, relying on Sheng Lien @ Sheng Len Yee v Tan Teng Heng (No 4) [2012] CLJU 111 and Re Low Kok Tuan ex p Arab-Malaysian Merchant Bank Bhd [1997] 4 CLJ 185.

44. There is force in the Plaintiff’s submission that, at the time Enclosure 18 was filed, the primary basis stated was a stay pending disposal of OS 2788 and, if necessary, pending appeal. At that point, no Notice of Appeal had yet been filed. **Note : Serial number will be used to verify the originality of this document via eFILING portal 11

45. However, the matter did not end there. The Defendant subsequently filed a Notice of Appeal dated 20.05.2026. In that sense, the Plaintiff’s objection on prematurity lost much of its practical force by the time the application came for decision.

46. Similarly, the Plaintiff argued that Enclosure 18 became academic once OS 2788 was dismissed on 24.04.2026. While there is logic in saying that the original prayer pending disposal of OS 2788 had spent itself, the Court does not think the application became wholly academic because the Defendant clearly continued to pursue a stay on the basis of an intended and then actual appeal.

47. As to the alleged defect in failing to state the correct provision, this Court accepts that applications should properly identify the procedural basis invoked. Authorities such as Amanggul Pirgul v Ruslan Alias & Ors [2021] CLJU 1891 and Zaini Che Awang & Ors v Pegawai Penerima Syarikat Cosmopro Planners Sdn Bhd & Ors [2014] CLJU 1827 underscore the importance of procedural precision.

48. Nevertheless, I accept that a purely technical omission does not necessarily dispose of the application if the Court is otherwise able to identify the substance of the relief sought. In that regard, Kerajaan Malaysia v PCB Development Sdn Bhd [2018] MLJU 780 and Order 1A of the Rules of Court 2012 make clear that the **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Court ought to have regard to the overriding interest of justice and not merely technical non-compliance.

49. Accordingly, this Court did not dismiss Enclosure 18 purely on technical grounds. I proceeded to consider the merits of the stay application itself. WHETHER SPECIAL CIRCUMSTANCES WERE ESTABLISHED

50. This is the central issue in the application. The Defendant placed heavy reliance on the propositions that: a. the property is land and therefore has special value; b. the property is the matrimonial home and has sentimental value; c. if sold, the appeal would be rendered nugatory; d. damages would not be adequate.

52. In support of these arguments, the Defendant relied on authorities such as Perwira Affin Bank Bhd v Ki Production Sdn Bhd [2000] 4 CLJ, Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 4 CLJ 476, Tan Sri Khoo Teck Puat v Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15, Sayap Jaya Sdn Bhd v Sejati Tropika Sdn Bhd [2025] CLJU 3192, AmBank (M) Bhd v Mujur Zaman Sdn Bhd & Ors [2008] 3 MLJ 608, and Citibank **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 N.A v Mrs N.D. Chandrasegaran Nee Nirmala Devi a/p P. Ratnadurai [2007] 1 LNS 156.

53. I have carefully considered those authorities. They undoubtedly affirm that land may in an appropriate case possess special value and that nugatoriness may amount to a special circumstance.

54. However, the question is always whether, on the facts of the present case, the applicant has shown exceptional circumstances sufficient to displace the Plaintiff’s prima facie right to enforce its valid and subsisting Order for Sale.

55. In my judgment, the Defendant has not done so.

56. First, the mere fact that the subject matter is land does not automatically compel a stay. If that were so, every foreclosure appeal involving land would almost invariably attract a stay, which is plainly not the law.

57. Secondly, while the Defendant described the property as possessing sentimental value and being a matrimonial home, that assertion was not sufficient, in the circumstances of this case, to elevate the matter into one of such exceptional character as to justify keeping the Plaintiff out of the fruits of its order. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14

58. Thirdly, the Plaintiff is a secured financial institution. Cases such as OCBC Bank (Malaysia) Bhd v Prolink Marketing Sdn Bhd [2022] CLJU 1120 and Univein Sdn Bhd v Malaysia Building Society Bhd [2003] 2 CLJ 514 support the proposition that a chargee should not lightly be prevented from enforcing an Order for Sale and that in appropriate cases any loss may be compensable by damages.

59. I accept that the Defendant attempted to distinguish those cases on the basis that they involved commercial property whereas the present property is residential. But the distinction does not by itself answer the present application. The central question remains whether special circumstances have been shown. On the facts before this Court, I do not find that the Defendant has demonstrated circumstances of the requisite exceptional quality.

60. Fourthly, the Plaintiff is entitled to enforce its statutory and contractual rights as chargee. The Order for Sale was obtained on 26.09.2019 and remains valid and subsisting unless and until set aside by the appellate court. This Court cannot proceed on the assumption that the appeal will succeed.

61. Fifthly, the Defendant’s reliance on nugatoriness was not sufficient in the circumstances because the asserted nugatoriness was founded substantially on the contention that the Order for Sale is null and void. That is a merits issue for the appellate forum. It **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 cannot, without more, be used to convert an ordinary stay application into a successful one.

62. As held in Ming Ann Holdings, Chang Shu Hua, and Kosma Palm, the Court must be careful not to allow arguments on the validity or correctness of the impugned order to dominate a stay application. WHETHER THE MERITS OF THE NULLITY CHALLENGE WERE RELEVANT

63. A substantial portion of the Defendant’s case was built around the contention that the Order for Sale was null and void because it was made by a Senior Assistant Registrar without jurisdiction.

64. The Defendant relied on the notion that a null order may be attacked in collateral proceedings, citing EU Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37.

65. The Defendant also argued that the fresh challenge in OS 2788 was not abusive, duplicative, or an afterthought, but was a legally permissible means of challenging a nullity.

66. Those arguments may well be matters to be fully ventilated in the appeal against the dismissal of OS 2788. But they are not determinative of the present stay application. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16

67. This Court was not sitting as the appellate court over OS 2788, nor was it deciding the substantive validity of the Order for Sale in Enclosure 18.

68. In line with Kosma Palm, Ming Ann Holdings, and Chang Shu Hua, the merits or correctness of the order appealed against are not, by themselves, special circumstances.

69. Accordingly, I did not consider it proper in this stay application to determine whether the Order for Sale was in fact null and void. That issue lies for the proper appellate forum. DELAY AND THE CHARACTER OF THE APPLICATION

70. Another important factor in this case is the chronology. The Order for Sale was obtained on 26.09.2019.

71. On the material before this Court, the Defendant had knowledge of the Order for Sale and did not challenge it at the material time.

72. The challenge to the Order for Sale was only mounted years later through OS 2788, filed on 09.12.2025.

73. By then, the Plaintiff had already moved to execute the Order for Sale. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

74. While delay alone is not always fatal where nullity is alleged, the chronology is nevertheless relevant when assessing whether the present stay application is founded on genuinely exceptional circumstances.

75. The Court is entitled to look at the entire factual matrix. On that matrix, I was not satisfied that the present application bore the features of an exceptional case warranting interference with the Plaintiff’s right to enforce the order.

76. The Plaintiff also argued that the challenge was an afterthought and an abuse of process, relying inter alia on Kok Kon Sang v Institut Akauntan Malaysia [2020] 1 CLJ 702.

77. I do not think it was necessary for this Court to make any concluded finding that the Defendant’s proceedings were abusive. That too overlaps with merits questions which may arise elsewhere.

78. But I do consider it relevant that the challenge came many years after the Order for Sale was made and after the Plaintiff had become entitled to enforce it. That factual reality weighs against the grant of a discretionary stay. **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 LOCUS STANDI OF THE ADMINISTRATOR

80. The Defendant also argued, relying on section 59 of the Probate and Administration Act 1959, section 8 of the Civil Law Act 1956, Law Hock Key & Anor v Yap Meng Kan & Ors [2008] 3 CLJ 470, and Tebin bin Mostapa (as administrator) v Hulba-Danyal bin Balia & Anor [2017] 5 MLJ 771, that the Administrator has locus standi to act on behalf of the deceased’s estate.

81. The Plaintiff, on the other hand, submitted that the Administrator’s role is subject to existing liabilities and that the charged property remains answerable first to the secured debt, relying on section 70 of the Probate and Administration Act 1972.

82. In my view, it was not necessary in this application to reject outright the Administrator’s standing. The Administrator had obtained Letters of Administration and was plainly entitled in a general sense to act for the estate.

83. However, even if I accept that the Administrator had standing to bring Enclosure 18, that does not carry the application very far. Locus standi is one thing; establishing special circumstances for a stay is another.

84. The present application ultimately failed not because the Administrator had no standing to appear before the Court, but **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 because he did not satisfy this Court that the discretion to grant a stay ought to be exercised in his favour. THE POSITION OF THE PLAINTIFF AS SUCCESSFUL CHARGEE

85. This Court also accords considerable weight to the Plaintiff’s position as a secured chargee and successful litigant.

86. The Plaintiff obtained an Order for Sale following default. The Plaintiff has statutory and contractual rights to realise the security.

87. The law has long recognised that such a successful litigant should not ordinarily be kept from the fruits of litigation unless the circumstances are truly exceptional.

88. I accept the Plaintiff’s submission that it should not be prevented indefinitely from enforcing a valid and subsisting Order for Sale merely because an appeal has been filed.

89. This is particularly so where the appellate process has only just commenced and the present Court is asked, in effect, to suspend enforcement on grounds that largely overlap with the merits of the appeal itself.

90. The authorities relied upon by the Plaintiff, especially OCBC Bank v Prolink Marketing and Univein v Malaysia Building Society, **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 support the proposition that a chargee’s rights to enforce should not lightly be interfered with and that the possibility of compensation by damages is relevant.

91. In the circumstances of this case, I was not persuaded that the balance lay in favour of restraining the Plaintiff from proceeding with execution. CONCLUSION

92. Having considered the affidavits, the written submissions, the reply submission, and the authorities cited by both parties, this Court reached the following conclusions.

93. First, although there were procedural objections raised by the Plaintiff as to prematurity, academicity, and defect in form, I did not dismiss Enclosure 18 purely on technical grounds. I considered the substance of the application.

94. Secondly, the Defendant / Administrator failed to establish special circumstances sufficient to justify the grant of a stay of execution.

95. Thirdly, the mere filing of an appeal does not, by itself, justify a stay. **Note : Serial number will be used to verify the originality of this document via eFILING portal 21

96. Fourthly, the Defendant’s assertions that the Order for Sale is null and void, and that the challenge would succeed on appeal, are matters for the proper appellate forum and do not, without more, amount to special circumstances in this stay application.

97. Fifthly, while land may in some circumstances possess special value, the facts of this case did not persuade this Court that such value, whether legal, special, or sentimental, was sufficient to outweigh the Plaintiff’s right as secured chargee to enforce its order.

98. Sixthly, the Court also took into account the chronology of the matter, including the long lapse of time between the making of the Order for Sale and the eventual challenge thereto.

99. For all these reasons, this Court was not satisfied that Enclosure 18 was founded on exceptional circumstances warranting the exercise of discretion in favour of the Defendant / Administrator.

100. Accordingly, Enclosure 18 was dismissed. The interim order previously granted was discharged.

101. The Plaintiff was at liberty to proceed with the execution and auction process in accordance with law. **Note : Serial number will be used to verify the originality of this document via eFILING portal 22

102. Costs of RM3,000.00 were awarded to the Plaintiff, subject to allocatur. Dated this 16th June 2026 -sgd- ………………………………….. Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Ms. Nur Athirah binti Ahmad Messrs Zulpadli & Edham Counsel Defendant : Mr. Abd Shukor bin Tokachil (Ms. Saha Lyna binti Abd Latif with him) Messrs. Sasha Lyna **Note : Serial number will be used to verify the originality of this document via eFILING portal