Walau bagaimanapun, Plaintif tidak lagi berhak untuk menuntut atas terma-terma Surat Tawaran atau apa-apa perjanjian pinjaman yang berkenaan tersebut 11 memandangkan Mahkamah Tinggi di Kuala Lumpur telah memberi penghakiman (Guaman No D7-22-1091- 2006) ke atas tuntutan Plaintif berdasarkan Surat Tawaran tersebut dan/atau perjanjian pinjaman yang berkenaan pada 6.9.2006) [14] It is bare basic of legal practice to appreciate that an action for judgment sum and an action in execution of the judgment sum is totally and utterly different from one another. And of course, the same debt, the same basis of debt, the same document proving debt, the same agreements, and the same covenants would be reproduced and relied unto in the subsequent action in enforcement. How is it even remotely logical that the judgment for the judgment sum is a catalyst to deem all subsequent actions in enforcement barred by res judicata? Such contention is preposterous. [15] First and foremost, this Court has the utmost duty to correct and clarify another mystifying misstatement of the law brought forth by the Defendant regarding the position of a lien-holder and a lien-holder’s rights to enforce the lien under the same provisions of the Land Code regarding charges. It is trite that the position of a lien- 12 holder is akin to the position of a chargee and an action for enforcement of lien would rely on the same provisions of an enforcement of charge. [16] The Defendant however had the audacity to challenge the validity of the entire enforcement action, on the erroneous supposition that the provisions regarding order for sale in the National Land Code, only applies to charges and not lien. And this is contended so in the erroneous reading of the law in that Section 254(1) of the National Land Code, reads that a Notice of Demand in Form 16D can only be issued in the case of a “charge”. Erroneously then, the provision can only apply in cases of a charge since charge had been defined in Section 5 of the Code to be “registered charge”. [17] This Court cannot emphasise enough how preposterous this supposition is. As much as the learned counsel of the Defendant ought to seek the best interest of its client, a blatant misstatement of the law is inexcusable. As it correctly stands, the entire provision of the Order for Sale in the National Land Code is encapsulated in “Chapter 3” aptly bearing the heading which reads “REMEDIES OF CHARGEES: SALE”. Every single provision from Sections 253 to 259 refers to charges. Nonetheless, it is already trite law 13 that lien-holder’s remedies also fall within Chapter 3 of the National Land Code, and a lien-holder may apply for an order for sale, the same manner a chargee may under the same provisions of the National Land Code. This Court is guided by the landmark decision of the Court of Appeal in the case of Perwira Affin Bank Bhd (formerly known as Perwira Habib Bank Malaysia Bhd) v Selangor Properties Sdn Bhd & Ors [2010] 3 MLJ 43 which had held that: “[18] A lien is said to be similar to an equitable mortgage where the lien-holder retains the issue document of title together with the duplicate of the registered lease or a copy of the issue document of title issued under s 343(3) of the NLC. And in such a situation, the interest secured would be akin to that of a co-proprietor. The deposit of the issue document of title must have been made with the intention that the deposited document would serve as a security for the loan and that the loan must not be a registered charge but rather an unregistered interest recognised by the NLC. It is at this point of time that the lien creates 14 what is known as an 'equitable' interest in the land or lease and that would legally give the lien-holder the right to enter a lien-holder's caveat which would definitely trigger a statutory interest. …. [21] According to s 343 of the NLC, a lien can be created over an alienated land or even over a registered lease or even in an undivided share in an alienated land. And the best remedy available to the lien-holder would be, firstly, to obtain a judgment debt under O 42 of the Rules of the High Court 1980 for the amount due and, secondly, to apply to the court for an order for sale of the land or the registered lease pursuant to the provisions of ss 257–259 of the NLC.” [18] Now having in mind the position of the Plaintiff as lien-holder is akin to a chargee, this Court moves on to correct and clarify yet another one of the Defendant’s misstatement in law which is the erroneous supposition that the Plaintiff’s action in enforcement is barred by res judicata from the judgment of 2006 as well as the previous bankruptcy proceedings. It is reiterated here that the 15 Plaintiff’s action in rem to foreclose the Property is a distinct and separate from an action in personam for the debt in the bankruptcy proceedings and the judgment of 2006. This Court is guided by the decision of the High Court in the case of Bank Utama (Malaysia) Berhad v Saujana Pertiwi Sdn Bhd [2003] 7 MLRH 243: “The Plaintiff further contended that even though the 3 actions arose from the granting of the same Overdraft facility but each of the actions taken was based on different documents by different parties and concerning different issues. In support of its contention the Plaintiff referred to the case of Co-operative Central Bank Bhd. v. Belaka Suria Sdn. Bhd. [1991] 2 CLJ 453 (Rep); [1991] 3 CLJ 2131; [1991] 3 MLJ 43, where the learned Judge ruled:- "In principle, a chargee has a right to institute an action for recovery of the debt and also a right to assert the power of sale on the incumbered property, the 2 actions are not the same." After having considered this matter carefully, I agreed fully with the contention by the Counsel for the Plaintiff. The 16 decision of the Federal Court case of Low Lee Lian v. Ban Hin Lee Bank Bhd. [1997] 2 CLJ 36; [1977] 1 MLJ 77 which states:- "Now, it is trite that a chargee/creditor may pursue any or all remedies to recover monies lent by him. He may enforce his statutory charge against the chargor by way of proceedings in under S. 256 of the Code. He may sue the principal debtor (who may or may not be the chargor) upon the personal covenant contained in any loan agreement that was entered into between the parties. He may proceed against the surety who has guaranteed the loan. And he may sue all these courses simultaneously, contemporaneously or successively." (emphasis added). [19] Therein, having the above in mind it is this Court’s finding that the present enforcement action by the Plaintiff is definitely not barred by res judicata. 17 C. WHETHER THE NOTICE OF DEMAND IS A VALID DEMAND TO INSTITUTE THE ENFORCEMENT OF THE LIEN [20] The first contention against the validity of the Notice of Demand (Form 16D) had already been debunked in the previous section of this Judgment. The Defendant cannot simply deem the Notice of Demand to be invalid merely on the false supposition that a lien cannot fall within the ambit of provisions pertaining to chargee’s remedies for an order for sale. Indeed it has been a trite principle in law that a lien-holder may seek the same remedy for an order for sale as a chargee in reliance of the same provisions as a chargee would have relied upon in the National Land Code 1965. Thus, this Court dismisses this misguided contention by the Defendant. [21] Secondly, in sheer desperation to poke holes in the Plaintiff’s case, the Defendant attempted to invalidate the Form 16D on the contention of a supposed prejudice as he was miraculously confused by the date of the granting of facility that was stated in the Notice of Demand. The simple typographical error in the Form 16D is just that instead of the date of the Offer Letter being 10.10.2000, the Form 16D reads 14.10.2000. This is yet another 18 exasperating obstacle put forth by the Defendant that is altogether void of any substance. There is no room for prejudice or confusion at all here. The Plaintiff had ever granted only one term loan facility to the Defendant to the amount of RM666,000.00. And the same RM666,000.00 was written on the Form 16D, Also the Defendant has had the knowledge that the Plaintiff is pursuing to have these debts recovered since the judgment of 2006 and that judgment, as well as the two (2) bankruptcy proceedings all refer to the same Offer Letter of 10.10.2000. Although there is a typographical error here, it is vividly clear that no confusion would set whatsoever as it would be verily clear in the Defendant’s mind that the Plaintiff is enforcing its rights to recover its debts and enforcing the lien in relation to the one and only Offer Letter that is dated 10.10.2000. [22] There is far greater justice to serve as compared to the immaterial typographical error in the Notice of Demand. In fact there is far greater injustice if this Court were to invalidate the Notice of Demand in Form 16D allowing the Defendant to prolong his spree of delinquent non-compliance to the Judgment of 2006 as well as the Offer Letter and the Facility Agreement. It is well within this Court’s inherent power under Order 92 rule 4 of the Rules of Court 2012 to prevent injustice and abuse of the process of the 19 Court, to overlook this immaterial and non-prejudicial typographical error contended by the Defendant. [23] Thirdly and lastly, the Defendant contended that the amount claimed under the Form 16D is incorrect as it failed to take into consideration certain number of payments made by the Defendant towards the debt. And in attempting to prove the alleged error, the Defendant had exhibited numerous however incoherent, unexplained documents, which includes unexplained current account statements, corporate current account statements, cheque deposit advice slips from the cheque deposit machine, and in fact, payment vouchers drawn up by the Defendant which were never signed to be received by the Plaintiff. [24] This Court has taken pains to scrutinise these loose documents without any indications as to its relevance to prove the Defendant’s contention of unaccounted payments. None of these documents indicate any sort of payment was ever deposited or received into the Defendant’s account with the Plaintiff. In fact, the extent of incoherence is so blatant that the Defendant even exhibited cheque deposit advice slips in which are advice slips printed upon mere depositing of cheques at the machine. This slip not at all can 20 be made as proof of cheque clearance or payment made. Even the fine print of the cheque deposit advice reads that the cheque deposited “will be processed” and had not yet been processed. [25] The fact that the Defendant cannot exhibit any consequent proof of this cheque’s clearance is further proof of the Defendant’s inability to substantiate its contention of payments. By and large none of the documents exhibited bear any proof that any of the payments made or monies paid out were deposited into the Defendant’s account with the Plaintiff. All the account statements only show the movements of monies of inconsistent amounts but none of the accounts show that the monies moved were in fact paid to the Defendant’s account with the Plaintiff or received by the Plaintiff. [26] Now, how is it logically and legally incumbent upon the Plaintiff to make such deductions, when the Defendant himself utterly fails to prove any of these payments ever made it into the Defendant’s account with the Plaintiff? The answer is that it is not logically and legally incumbent for the Plaintiff to account for these payments. It must be highlighted that the Defendant merely tabulate alleged payments made with utterly loose reference to exhibits in his affidavit. There was no analysis of any depths regarding the 21 exhibits’ relevance in proving the alleged payments by the Defendant. [27] On the same issue of the amount claimed, if indeed the amount claimed under the Form 16D is incorrect, then the Defendant should have disputed the amount outright upon receipt of the Notice of Demand (Form 16D). Instead, the Defendant chose to do absolutely nothing and sat idly by. And this utter absence of response or retort is a clear admission of the amount by the Defendant. The Defendant cannot now at the final hour dispute the amount when all the while upon receiving the Notice of Demand, the Defendant had done nothing to challenge the amount. [28] This Court refers to the decision of the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 which had held that: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and 22 cold in the attitude that you adopt. A man cannot adopt two inconsistent attitude towards another : he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [29] This Court further to the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where the Federal Court referred to Lord Denning’s decision in the case of Amalgamated Investment which had held the following: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by 23 acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” [30] Thus, the Defendant here cannot be allowed to take both stances in admitting and denying the amount. When the Defendant had admitted the amount (by not challenging the amount stated in the Notice of Demand) the Defendant cannot subsequently go against his own admission. 24 [31] Thus, upon the foregoing deliberation, it is this Court’s finding that the Notice of Demand remains valid, subsisting and enforceable against the Defendant. D. WHETHER THE SERVICE OF THE ORIGINATING SUMMONS AND NOTICE OF DEMAND ARE VALID [32] In further detestable attempt to confuse this Court, the Defendant had contended a number of plain misconceived readings of the documents binding the parties in the present Originating Summons. [33] Firstly, the Defendant had the audacity to attempt to separate and sever the Facility Agreement from the present action by the Plaintiff. Rather peculiarly, again the Defendant opted to contradict its own stance. On one hand, the Defendant contended that the Plaintiff’s enforcement action ought to be barred by res judicata for relying on the Offer Letter and Facility Agreement determined in the judgment of 2006, and on another hand now, the Defendant sought to demarcate and differentiate the present Enforcement Action to be different from the Facility Agreement. Now this is verily confusing and it is utterly telling of the Defendant’s own 25 confusion with its own defence. Nonetheless, the real reflection of the fact and law is that the present enforcement action in rem here also refers to the same Offer Letter and Facility Agreement. It remains undisputed that the lien-holder’s caveat was lodged in view of the Offer Letter and the Facility Agreement to secure the term loan facility granted by the Plaintiff under the Offer Letter and the Facility Agreement. Thus, the Offer Letter, the Facility Agreement, and the lien-holder’s caveat are inextricably connected and the same documents may be referred to in separate actions in rem against the Property and in personam against the covenants. What is contended by the Defendant is immensely ridiculous. It goes without saying and common sense would dictate that any action for enforcement of lien would refer to a supposed default of the repayment of debts from facilities which were granted under a covenant (and the covenants in the present case would be the Offer Letter and the Facility Agreement). It is absurd that the Defendant supposes that the present enforcement action would not involve the Facility Agreement. Again this is sheer basic understanding of the law that the Defendant attempts to distort in the face of this Court. 26 [34] Secondly, apart from the brazen and absurd attempt to sever the terms of the Facility Agreement from the present Originating Summons, This Court must express its disdain on the misleading, partial, selective, and isolated reading of the Facility agreement. The Defendant deliberately cited (in isolation) Section 15.23 of the Facility Agreement which stipulates that the parties subject themselves to the jurisdiction of the Court of Malaysia and deems that upon the parties subjecting themselves to the jurisdiction, then the manner of service must be upon the manner and method of that jurisdiction, being the Rules of Court 2012. However, this malevolent isolated reading of the section deliberately leaves out the fact that the manner and method of service had already been prescribed in the same Section 15.23 of the same Facility agreement. If the parties had intended that the mode of service must be AR registered service, then the parties would have reflected the same in the agreement. If the parties omitted the mention of the requirement of the AR registered service (when it is common knowledge that this AR registered post is in existence and available) it must have been the intent of both parties that an AR registered post is not required. Sections 15.23 and 15.30 are reproduced here for convenience: 27 Section 15.23 LAW …the service of any writ or summons or any legal process in respect of any such action or proceeding may be effected on the Borrower or the Bank by forwarding a copy of the writ or summons, statement of claim or other legal process by prepaid registered post to their respective address for the time being. … Section 15.30 NOTICES