JAMALUDIN BIN JAAFAR v Pentadbir Tanah Daerah Kota Setar (KA-24NCvC-596-12/2024)

PENTADBIR TANAH DAERAH,

AFFIN BANK BERHAD (NO. SYARIKAT: 25046-T) …RESPONDEN GROUND OF JUDGMENT A.

The application before me relates to the making of an Order for sale under the National Land Code and the attendant consequences. More importantly it relates to the question whether an order for sale can be impugned in a separate action such the present one.

The Applicant through this Originating Summons dated 02.12.2025 [Enclosure 27] prayed for the following:

(a) An interim order to stay the public auction scheduled by the District Land Administrator at the Kota Setar Land Office, Alor Setar, Kedah, on 10.12.2025 at 10:00 a.m., or any subsequent date, concerning the Applicant’s property (GM 23135, Lot No. 1451, Bandar Alor Setar, District of Kota Setar, Kedah Darul Aman), pending the High Court’s hearing and determination of the Applicant’s Notice of Application.

(b) A declaration that the First (Resale) Notice of Sale issued by the District Land Administrator on 05.11.2025, under Section 263 of the National Land Code as an Order for Sale at the request of the chargee, is defective, irregular, unlawful and therefore null and void.

(c) A declaration that the decision of the District Land Administrator, which relied solely on the Certificate of Indebtedness issued by the chargee dated 31.10.2024 without any inquiry under Sections 27 and 261 of the National Land Code is irregular, defective and null and void.

(d) A declaration that the public auction fixed on 10.12.2025, or any subsequent date, by the District Land Administrator pursuant to the Notice of Sale dated 05.11.2025 purportedly under Section 262 of the National Land Code, is null and void.

After hearing the parties and having carefully considered all the evidence before me, I dismissed the Applicant’s application.

Dissatisfied with my decision, the Applicant has filed a notice of appeal dated 8 May 2026.

The following are my grounds in arriving at my decision. B.

The Applicant is the registered proprietor of a Malay Reserve Land held under GM 23135, Lot No. 1451, Bandar Alor Setar, Kota Setar District, Kedah Darul Aman, measuring approximately 0.403 hectares (1 acre).

Between 1997–1998, the Second Respondent extended a banking facility to one Teh Two Kia, the sole proprietor of Leong Hin Company, and several parcels of land were charged as security for that facility.

The securities consisted of:

(a) first-party charges over two parcels of land owned by Teh Two Kia in Jitra and Pokok Sena, Kedah, both later auctioned in 2013 and 2017; and

(b) third-party charges over the Applicant’s land (GM 23135, Lot No. 1451) created in 1998, 2006, and 2008 (the charged property).

The borrower, Teh Two Kia, passed away on 16.05.2010, and no further repayments were made on the banking facilities granted by the Second Respondent thereafter.

The Second Respondent subsequently exercised its rights as chargee by applying for and obtaining an order for sale (hereafter Sale Order) dated 20.01.2014 over the charged property.

11.

Both auctions were unsuccessful as:

(a) the successful bidder at the first auction failed to complete the purchase, resulting in forfeiture of the deposit; and

(b) the second auction attracted no bidders.

The Second Respondent then applied to the High Court under Section 265(3)(b) of the National Land Code for an Order for Sale through Originating Summons No. KA-24FC-41-08/2022 and obtained the order on 09.08.2023.

The Applicant appealed against that decision of the High Court via Appeal No. K-02(A)-1476-09/2023. The Court of Appeal set aside the High Court’s order and directed that a fresh public auction be conducted at the Kota Setar Land Office pursuant to the Sale Order dated 20.01.2014.

Following the Court of Appeal’s decision, the First Respondent issued a new Order for Sale dated 21.10.2024, which was later annulled by mutual consent between the Applicant and the First Respondent through Originating Summons No. KA-24NCvC-596-12/2024.

It is pertinent to state that the Court of Appeal in its Order stated: -

Acting upon the Court of Appeal’s Order, the First Respondent subsequently issued a First (Resale) Notice of Sale dated

05.11.2025 and fixed 10.12.2025 as the date for the public auction, relying on the Sale Order dated 20.01.2014.

The Applicant objected to the public auction on the grounds that the First (Resale) Notice of Sale dated 05.11.2025 issued under Section 263 of the National Land Code is defective, irregular, unlawful and void; that the District Land Administrator’s decision, made solely on the basis of the Certificate of Indebtedness dated 31.10.2024 without conducting any inquiry under Sections 27 and 261 of the National Land Code; is procedurally improper and void; and that the public auction fixed pursuant to the Notice of Sale dated 05.11.2025 under Section 262 of the National Land Code is likewise null and void. C.

From the factual matrix set out above, it seems to the Court that the issues in focus which require determination are as follows:

(a) Issue 1 - Whether the First Respondent is required to conduct a fresh inquiry before fixing the auction date.

(b) Issue 2 - Whether the Notice of Sale dated 05.11.2025 is vitiated by the defects.

(c) Issue 3 - Whether reliance on the Certificate of Indebtedness dated 31.10.2024, without conducting a fresh inquiry, renders the First Respondent’s decision invalid.

(d) Issue 4 - Whether the 16D Notice must be issued afresh.

(e) Issue 5 - Whether there exists cause to the contrary. D. ANALYSIS Issue 1

The Plaintiff contends that the 2013 inquiry is no longer relevant by reason of the existence of a new Certificate of Indebtedness dated 31.10.2024. This submission is legally misconceived.

The record clearly demonstrates that two inquiries were convened, namely on 13.02.2012 and 28.10.2013, at which the Plaintiff was present. This is confirmed through Exhibit NASNA 1.

Those inquiries culminated in the issuance of a Form 16H Order for Sale dated 20.01.2014, which was subsequently brought before the High Court and thereafter the Court of Appeal.

On 11.09.2024, the Court of Appeal held that: “there is no defect whatsoever in the Order for Sale issued by the Land Administrator of Kota Setar”.

Once the Court of Appeal has affirmed the validity of the said Order for Sale, the Applicant is precluded from re-litigating the foundation of the 2013 inquiry. This is the principle of finality of litigation.

Moreover, Section 34(1)(ii) of the National Land Code prohibits the reopening of an inquiry after three years. The 2014 Order for Sale has long surpassed that statutory period.

This principle is reinforced by the Court of Appeal in Perwira Affin Bank v Lim Meow [1998] 4 CLJ 17, which affirmed that the Land Administrator becomes functus officio upon issuing an Order for Sale.

Accordingly, the Plaintiff’s contention that a fresh inquiry is required is wholly unfounded, unsupported in law, and contrary to the principle of finality. Issue 2

I am unable to accept the Applicant’s contention that the Notice of Sale dated 05.11.2025 constitutes a new Order for Sale. To my mind it merely fixes a fresh auction date pursuant to Sections 263 and 265 of the National Land Code.

The Applicant seeks to equate the Notice for Sale with an Order for Sale. This reflects a fundamental misunderstanding of the statutory framework under the National Land Code.

Section 263(2)(c) of the National Land Code expressly permits the Land Administrator to state the amount of indebtedness based on information provided by the chargee.

There is no statutory provision mandating the convening of a new inquiry for each subsequent auction date.

The Court accepts the explanation of the First Respondent that the use of the word “inquiry” in the Notice for Sale was a clerical error which does not affect the validity of the notice as a whole.

The Applicant has failed to demonstrate any substantive defect capable of vitiating the Notice for Sale in question. Issue 3

The Court of Appeal has clearly held that: “Any dispute concerning the quantum of indebtedness must be resolved through a civil action in contract.”

The Applicant now seeks to challenge the Certificate of Indebtedness by way of an application under Section 418 of the National Land Code, notwithstanding that the Court of Appeal has already determined that the proper forum is a civil action, not an administrative appeal such as the present action

This constitutes an attempt by the Applicant to circumvent the proper forum, and the Court cannot permit litigation by way of a backdoor route.

Furthermore, the principle of res judicata applies, as the Applicant has previously raised the issue of the quantum of indebtedness in earlier proceedings.

The Plaintiff argues that the 2024 Certificate of Indebtedness did not exist at the time of the appeal. This does not alter the fact that the issue of indebtedness has already been determined to be a contractual matter, not an administrative one.

The Certificate of Indebtedness is a contractual document which is final and conclusive, consistent with the decision in Cempaka Finance v Ho Lai Ying [2006] 3 CLJ 544.

The Applicant has failed to establish any manifest error that would undermine the validity of the Certificate of Indebtedness. Issue 4

A Notice under Form 16D is only required prior to the application for the first Order for Sale.

Once the Order for Sale of 2014 has been issued and affirmed by the Court of Appeal, there is no requirement to issue a fresh Form 16D Notice for subsequent auctions.

This position is supported by the decision in RHB Bank v Nujade Garden [2021] MLJU 2834.

The Applicant’s attempt to revive the issue of the Form 16D Notice in order to indirectly challenge the 2014 Sale Order amounts to an abuse of process. Issue 5

The principle of “cause to the contrary” is confined to three categories as laid down in Low Lee Lian v Ban Hin Lee Bank [1997] 2 CLJ 36.

The Applicant has failed to establish:

(i) that the charge is defeasible;

On the contrary, the issues raised by the Applicant pertain to matters of contract and indebtedness, not administrative law.

In any event the existence of the cause to the contrary is not relevant at this juncture. Suffice to say that this Court cannot permit the Applicant to invoke Section 418 of the National Land Code to challenge matters that fall outside its proper scope. Decision

In the upshot Enclosure 27 is dismissed with costs.

Costs of RM10,000.00 each to be paid to the First and Second Respondents subject to allocator. Dated: 28 June 2026 (Mohd Aimi Zaini Bin Mohd Azhar) Judicial Commissioner High Court Malaya Alor Setar Kedah Darul Aman Solicitors for the Applicant: Latsmanan Ponnusamy (Khor Xin Qin and Ranjit Singh Dhillon together with him) Messrs. Khor Gaik Thiam & Latsmanan Solicitors for the First Respondent: Nurul Liayana binti Mohamad Nasir Pejabat Penasihat Undang-Undang Negeri Kedah Solicitors for the Second Respondent: Dato’ Manpal Singh Sacdev Messrs. Manjit Singh Sachdev, Mohammad Radzi & Partners