Export-Import Bank of Malaysia Berhad v Noble Energy (M) Sdn Bhd (WA-24FC-164-01/2025)

ANTARA EXPORT-IMPORT BANK OF MALAYSIA BERHAD [NO. SYARIKAT : 199501027992 (357189-K)] … PLAINTIF NOBLE ENERGY (M) SDN BHD [NO. SYARIKAT : 199301029310 (284049-M)] … DEFENDAN

The Plaintiff applied to auction off the properties charged to it by the Defendant in executing a Judgment against IHME LCC (“the Borrower”). The application by way of an Originating Summons was made under section 256 and 257 of the National Land Code (“NLC”) as well as Orders 31, 31A and 83 of the Rules of Court 2012 (“the Rules”).

The relevant provisions of the law are reproduced here for ease of reference: S/N aijlmZAbpE6/3QBFcvwswQ

This section applies to land held under-

Registry title;

the form of qualified title corresponding to Registry title; or

subsidiary title, and to the whole of any divided share in, or any lease of, any such land.

Any application for an order for sale under this Chapter by a chargee of any such land or lease shall be made to the Court in accordance with the provisions in that behalf of any law for the time being in force relating to civil procedure.

On any such application, the Court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the contrary. Section 257

Every order for sale made by the Court under section 256 shall be in Form 16H and shall-

provide for the sale to be by public auction; Order 31of the Rules S/N aijlmZAbpE6/3QBFcvwswQ

Power to order sale of immovable property (O. 31 r. 1) Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the cause or matter that the property or any part thereof should be sold, the Court may order that property or part to be sold, and any party bound by the order and in possession of that property or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct.

Establishment of e-Lelong System (O. 31A r. 2) The Registrar may, with the approval of the Chief Justice, establish a centralized system of electronic public auction to be known as e-Lelong System for sales of immovable property and for matters connected therewith.

Application and interpretation (O. 83 r. 1)

This Order applies to any action (whether begun by writ or originating summons) by a chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs: S/N aijlmZAbpE6/3QBFcvwswQ

payment of moneys secured by the charge;

sale of the charged property;

foreclosure;

delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the chargor or by any other person who is or is alleged to be in possession of the property;

A summary of the above provisions indicates that the Chargee can apply by way of Summons in Chambers to obtain an Order of Sale from the Court for the properties that are charged to satisfy a judgment sum that remains unpaid. Further the Court can grant such an order unless there exists “a cause to the contrary”. The issue

In this case the Court finds that the facts in the affidavits in support of the application shows that the properties were charged to the Plaintiff to satisfy a sum of money borrowed by the Borrower. The Borrower had failed to repay the borrowings which resulted in final judgment of court ordering the borrowed sum together with all the other additional dues including interest.

In the Court’s view the only issue needing determination is whether there is any cause to the contrary to disallow the application. S/N aijlmZAbpE6/3QBFcvwswQ Cause to the contrary

A large part of the Defendant’s affidavit is dedicated to putting the Plaintiff to strict poof which in the Court’s view have been satisfied. Part of the rest of the affidavit by the Defendant consists of bare denial.

The only cause to the contrary discernable from the affidavit of the Defendant is first, that the charge on the properties of the Defendant being a 3rd party charge was illegal and unenforceable under the law.

Secondly the charge was in a nature of a guarantee and therefore any order for sale must be preceded by an application for leave as the Defendant was not a party to the judgment.

The only averment in rebuttal to the Plaintiff’s application for order for sale is that the Borrower had satisfied the court judgment which was concealed by the Plaintiff. However, no evidence was adduced to support this rebuttal.

In the Court’s view none of the factors above constitute “cause to the contrary”. The provisions in the National Land Code do not prohibit 3rd party charges. A whole chapter is dedicated to charging of land as well as the effect thereof under Part 16 of the National Land Code. S/N aijlmZAbpE6/3QBFcvwswQ

The procedure to enforce the charge is also clearly spelled out and in this case the Court is satisfied that the procedure has been complied with. The necessary documents have been properly prepared and served on the Defendant. The Defendant’s contention otherwise is unsubstantiated or supported and is a merely a bare statement to thwart the sale.

As the Defendant has failed to show any cause to the contrary the Court allows the Plaintiff’s application. Dated: 24.10.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N aijlmZAbpE6/3QBFcvwswQ PARTIES For the Plaintiff: Nama Peguamcara: Nur Fazira Tetuan Azrul Afifi & Azuan No. 1-2, 2nd Floor, Jalan Rampai Niaga 5, Rampai Business Park, 53300 Kuala Lumpur For the Defendant: Nama Peguamcara: Asmawi Bin Ismail Tetuan Deidra Sharina & Co No. 3-1, Jalan PP Ixora 1, Pusat Perniagaan Ixora, Senawang, 70450 Seremban, Negeri Sembilan Darul Khusus. S/N aijlmZAbpE6/3QBFcvwswQ