Kh-Base Engineering Sdn Bhd v Rhb Bank Berhad (PA-24NCvC-469-04/2025)

Both parties have raised preliminary objections pertaining to the affidavits relied by one another.

The Plaintiff’s preliminary objection relates to the filing and service of the Afidavit Pembetulan (in Enclosure 26) which was filed on 13 August, 2025. The Plaintiff alluded to the fact that this Afidavit Pembetulan was filed after the filing of the Appellant’s Written Submission (in Enclosure 24) and after the exchange of affidavits had been exhausted.

According to the Plaintiff, this Afidavit Pembetulan was filed out of time and without obtaining any leave from the Court. As no such leave was sought or granted, the Plaintiff submitted that the filing of Enclosure 26 was therefore procedurally irregular and constituted an abuse of process.

The crux of the Plaintiff’s contention is that the Affidavit Pembetulan filed by the First Defendant ought not to be admitted. The Plaintiff further highlighted that this was not the first additional affidavit filed by the First Defendant, as an earlier Afidavit Tambahan (in Enclosure 19) had already been filed on 17 July, 2025 for the purpose of exhibiting additional documents. Accordingly, the Plaintiff argued that “the filing of successive affidavits in this manner amounts to granting the First Defendant multiple opportunities to improve or supplement its case, which is procedurally irregular and prejudicial. It was argued that parties are required to place their full affidavit evidence before the Court at the proper stage of proceedings, and that allowing repeated affidavits undermines the finality of proceedings and causes unfairness to the opposing party.

The Plaintiff added that it would be unjust to permit the filing of further affidavit evidence after the exchange of submissions, as the stage for adducing affidavit evidence had already closed. In its view, the First Defendant should not be allowed to reopen its evidential case once submissions have been filed.

In addition, the Plaintiff contended that the Affidavit Pembetulan was filed outside the prescribed fourteen-day period stipulated under Order 32 rule 13(2)(c) of the Rules of Court 2012, and that no application for an extension of time or leave of court had been made to regularise the late filing. In the absence of such leave, the Plaintiff argued that the affidavit is procedurally irregular and inadmissible.

The Plaintiff emphasised that the language of Order 32 rule 13(2)(c) is clear and applies to all affidavits filed in reply, including subsequent affidavits. Accordingly, they submitted that the Affidavit Pembetulan ought to be disregarded by the Court.

In support of the above contentions, the Plaintiff cited the case of Lum Choon Realty Sdn Bhd v Perwira Habib Bank Malaysia Sdn Bhd [2003] 4 MLJ 409; [2003] 3 CLJ 791; [2003] 5 AMR 577; [2003] 1 MLRA 485 (“Lum Choon Realty”) where the Court of Appeal made clear that affidavit evidence is deemed to be closed once parties have commenced their submissions. Rules 1978, a provision the Plaintiff regarded as “directly relevant”, together with the cases of Million Group Credit Sdn Bhd v Lee Shoo Khoon & Ors [1986] 1 MLJ 315; [1985] CLJ Rep 575; [1984] 1 MLRH 484 and Seng Huat Hang Sdn Bhd v Chee Seng & Co Sdn Bhd [1986] 1 MLJ 348; [1985] 1 MLRH 317; [1985] CLJ Rep 760.

The First Defendant too, raised a preliminary objection to the effect that the Originating Summons filed by the Appellant was defective pursuant to Order 41 rule 1(7) of the Rules of High Court 2012, that is, the Affidavit in Support (in Enclosure 3) was not affirmed before a Commissioner for Oaths and the Plaintiff refiled the Affidavit in Support (in Enclosure 9) without leave from this Court. Accordingly, it was submitted by the First Defendant that the Originating Summons was without a valid affidavit and thus should be dismissed in limine.

Order 32 rule 13(2)(c) of the Rules of Court 2012, relied by the Plaintiff, provides as follows: Service or use of affidavit (O. 32, r. 13) … …

a party intending to reply to an affidavit served on him shall file his affidavit and serve it on the other party within fourteen days from the date the affidavit he intends to reply was served on him; and …

14.

1.

Every affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn.

In addition, Rule 28 of the Legal Profession (Practice and Etiquette) Rules 1978, invoked by the Plaintiff reads:

Advocate and solicitor not to appear in a case where he is a witness

An advocate and solicitor shall not appear in Court or in chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client’s interests.

An advocate and solicitor shall not appear before an appellate tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below.

This rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as to formal or undisputed facts in matters in which he acts or appears.

Having carefully considered the above provisions and the cases cited by the parties, this Court is satisfied that none of the objections raised are fatal to the proceedings.

With regard to the Plaintiff’s preliminary objection to the filing and service of the Afidavit Pembetulan by the First Defendant, this Court finds the objection to be without merit.

The gravamen of the Plaintiff’s complaint is that the Afidavit Pembetulan was improperly filed and should not be admitted. However, upon a careful review of the affidavit evidence and submissions, this Court accepts the First Defendant’s explanation that the Afidavit Pembetulan was filed solely to correct an inadvertent documentary error, namely, the erroneous exhibition of Form 16D dated 15 January, 2024 instead of the correct Form 16D dated 12 January, 2024 addressed to the Plaintiff.

Importantly, this Court notes that paragraph 9 of the First Defendant’s Affidavit in Reply (Enclosure 8) had already made reference to the correct Form 16D dated 12 January, 2024, together with proof of posting addressed to the Plaintiff. The mistake lay not in the pleaded averments but in the attachment of the wrong exhibit. The Afidavit Pembetulan does not introduce any new facts, new allegations, or fresh causes of action, but merely regularises the documentary record.

This conclusion is further supported by the affidavit evidence of the Second Defendant, which confirms that when the First Defendant applied for the Order for Sale, the documents submitted included, inter alia, Form 16G dated 2 October, 2024, the statutory declaration in respect of Form 16D dated 12 January, 2024, and the said Form 16D itself. The Court accepts that the relevant authority would not have proceeded with the application had the incorrect Form 16D been submitted.

This Court also finds it significant that the Plaintiff has never disputed the correctness of the address stated in the letter dated 12 January, 2024 nor the postal slip evidencing service upon the Plaintiff. In contrast, the Plaintiff has failed to properly exhibit the Form 16H (Order for Sale) in respect of the subject land forming the basis of this appeal, and instead relied on a Form 16H relating to a different lot registered under different proprietors.

The Plaintiff’s reliance on Lum Choon Realty is also misplaced. That case is clearly distinguishable on the facts. There, the additional affidavit was filed after a prolonged delay and contained new allegations which ought to have been raised earlier. In the present case, the Afidavit Pembetulan was filed to rectify a genuine mistake, does not alter the substance of the First Defendant’s case, and does not prejudice the Plaintiff.

This Court further accepts the explanation that both Form 16D dated 12 January, 2024 and 15 January, 2024 relate to the same loan facilities, the same outstanding sums, and securities charged by different parties in respect of the same facilities. The mixing up of the two forms was therefore a bona fide and understandable error, particularly as both forms were inter-related and formed part of the same enforcement process.

Finally, the Court accepts that the Afidavit Pembetulan was affirmed by the First Defendant’s solicitor, who had personal knowledge of the issuance and service of the correct Form 16D, and that service of the correct document is corroborated by independent affidavit evidence.

Likewise, this Court finds that the preliminary objection raised by the First Defendant does not warrant the dismissal of the Originating Summons. Any non-compliance complained of has been cured and does not occasion any real prejudice to the Plaintiff.

Accordingly, pursuant to Order 1A and this Court’s inherent powers under Order 92 rule 4 of the Rules of Court 2012, this Court finds that any procedural irregularities raised by either party have been adequately explained, cured, or are otherwise not fatal. The Court therefore proceeds to determine the substantive merits of the appeal.

It was not disputed that the Plaintiff had received a “Saman kepada Penggadai Supaya Hadir Dalam Siasatan di Bawah Seksyen 261” dated 23 October 2024, issued by the Second Defendant, directing the Plaintiff to attend a land enquiry at the Second Defendant’s office in Bandar Perda on 23 January 2025 at 10.30 a.m. (hereinafter referred to as “the said Enquiry”). The Plaintiff had appointed Messrs Ong & Manecksha to attend the said Enquiry on its behalf.

The critical event leading to the granting of the Order for Sale now challenged by the Plaintiff arose from what the Plaintiff described as an “unforeseen incident”. According to the Plaintiff, on the date of the Enquiry, its solicitor was delayed due to a vehicle breakdown and only arrived at the Second Defendant’s office at 10.38 a.m. The Plaintiff averred that at about 10.15 a.m., its solicitor had contacted the First Defendant’s solicitor to inform that he would be late by approximately 10 to 15 minutes due to the said unforeseen incident.

The Plaintiff further contended that upon arrival, its solicitor was informed that the First Defendant and the Second Defendant had already proceeded with the Enquiry in the absence of the Plaintiff’s solicitor, resulting in the granting of the Order for Sale and the fixing of the auction date on 28 May 2025, with a reserve price of RM750,000.00.

Aggrieved by the said decision, the Plaintiff commenced the present Originating Summons on 22 April 2025, challenging the decision of the Second Defendant.

On the merits of the appeal, the Plaintiff advanced two principal grounds, namely:

non-compliance with statutory duties under the

breach of the rules of natural justice by the Second Defendant.

This Court will therefore first consider whether Form 16D was duly served on the Plaintiff. If this question is answered in the affirmative, the next issue is whether the Plaintiff was denied its right to be heard at the said Enquiry.

Although proceedings for an order for sale are actions in rem, the statutory safeguards under the National Land Code must nevertheless be strictly complied with, failing which there may be an infringement of Article 13 of the Federal Constitution.

The Plaintiff contended that the Order for Sale was defective as the First Defendant had failed to comply with the mandatory requirement under section 254(1) of the National Land Code, in that no valid Form 16D was served on the Plaintiff.

For ease of reference, the pertinent provision provides: Service of default notice, and effect thereof

(1) Where, in the case of any charge, any such breach of agreement as is mentioned in subsection 253(1) has been continued for a period of at least one month or such alternative period as may be specified in the charge which shall not be less than one month, the chargee may serve on the chargor a notice in Form 16d —

specifying the breach in question;

requiring it to be remedied within one month of the date on which the notice is served, or such alternative period as may be specified in the charge which shall not be less than one month; and

warning the chargor that, if the notice is not complied with, he will take proceedings to obtain an order for sale.

Where, after the service of any such notice, the charged land or lease becomes vested in any other person or body, the notice shall be as valid and effectual against that person or body as it was against the person or body on whom it was served.

If at the expiry of the period specified in any such notice the breach in question has not been remedied —

the whole sum secured by the charge shall (if it has not already done so) become due and payable to the chargee; and

the chargee may apply for an order for sale in accordance with the following provisions of this Chapter: Provided that paragraph (a) shall not apply to any charge to secure the payment of an annuity or other periodic sum.

The Plaintiff submitted that it did not receive any Form 16D relating to the charged property and that the Form 16D exhibited by the First Defendant was addressed to third parties. It was argued that this constituted a “cause to the contrary” which prohibited the granting of the Order for Sale.

In reply, the First Defendant averred that Form 16D dated 12 January, 2024 was duly issued and served on the Plaintiff by registered post in accordance with the terms of the Facilities Agreement, Charge, and the relevant annexures.

Based on Exhibit MZM-1, the Form 16D dated 12 January 2024 was sent to the following addresses associated with the Plaintiff:

No. 7126 (First Floor), Jalan Bagan Jermal, Taman Bintang, 12300 Butterworth, Pulau Pinang (registered address);

Units 1-04-08, 1-04-09 and 1-04-10, E-Gate, Lebuh Tunku Kudin 2, 11700 Gelugor, Pulau Pinang (address stated in the Letter of Offer);

No. 1010, Jalan Baru, Taman Bunga Raya, 13700 Prai, Pulau Pinang (property address); and

No. 5, Jalan Penawar 4, 11600 Jelutong, Pulau Pinang (address stated in the Letter of Offer).

The First Defendant further pointed out that the Plaintiff had admitted receiving the “Saman kepada Penggadai” dated 23 October, 2024 (Exhibit C, Affidavit of Siow Kok Yong, Enclosure 3), and that the addresses stated therein were identical to those used by the First Defendant in serving the Form 16D.

In the circumstances, this Court finds that the Form 16D dated 12 January, 2024 was duly served on the Plaintiff. The Plaintiff has failed, on a balance of probabilities, to establish any defect in service amounting to a “cause to the contrary”.

Accordingly, this Court finds in favour of the First Defendant on the issue of service of Form 16D. Issue 2: Right to be Heard/Natural Justice

The second issue concerns whether the Plaintiff was denied its right to be heard at the said Enquiry, which constitutes the third category of “cause to the contrary” as recognised in Low Lee Lian v Ban Hin Lee Bank Berhad [1997] 1 AMR 1036; [1997] 2 CLJ 36; [1997] 1 MLJ 77.

It is undisputed that the Plaintiff received the “Saman kepada Penggadai Supaya Hadir Dalam Siasatan di Bawah Seksyen 261” dated 23 October, 2024, directing it to attend the Enquiry on 23 January 2025 at 10.30 a.m.

According to the Plaintiff’s own evidence, its solicitor arrived late at 10.38 a.m. due to a vehicle breakdown. The Plaintiff further averred that its solicitor had contacted the First Defendant’s solicitor at around 10.15 a.m. to inform of the delay (see Enclosure 9, pp. 58–60).

The First Defendant, however, disputed that its solicitors were informed that the Plaintiff’s solicitors would be attending the Enquiry. It was further submitted that the Plaintiff’s solicitors did not inform the Second Defendant, who was the proper authority conducting the Enquiry, of their delay. The First Defendant argued that this omission was to the Plaintiff’s own detriment and that the Order for Sale was obtained in accordance with proper procedure.

The crucial question is whether, on a balance of probabilities, the Plaintiff has discharged the onus of establishing that it was denied the opportunity to be heard.

Upon consideration of the evidence, this Court finds that the Second Defendant had complied with section 262(3) of the National Land Code. The Plaintiff was duly summoned and given sufficient notice and time to attend the Enquiry. The Plaintiff’s non-attendance at the appointed time was not attributable to any fault or procedural impropriety on the part of the Second Defendant.

The Second Defendant was therefore entitled, under section 262(3)(a) of the National Land Code, to proceed with the Enquiry ex parte upon being satisfied that the summons had been duly served.

For completeness, section 262 of the National Land Code provides as follows: Provisions as to enquiry

(1) No persons or bodies other than the chargor or chargee or in his or their absence a person or body appointed by the chargor or chargee under subsection 253(4), shall be entitled to be heard, or to adduce evidence, at any enquiry under section 261 (and accordingly, the chargor and the chargee or the person or body appointed, as the case may be, shall be entitled to apply for a postponement or change of venue under subsection 28(2), or to receive notice under subsection (4) of that section of any cancellation, postponement or change of venue).

If the chargee fails to appear at the time fixed for the hearing of any such enquiry, the Land Administrator shall dismiss the application.

If the chargee appears, but not the chargor, the Land Administrator —

if satisfied that a summons to appear was duly served on the chargor, and in sufficient time to enable the chargor to appear and answer, shall proceed with the hearing ex parte;

if not so satisfied, shall adjourn the hearing to a later date, and cause a fresh summons to be served.

Where there are more chargees than one, and some only of them appear, or more chargors than one, and some only of them appear, the Land Administrator may at his discretion proceed with the hearing or adjourn it to a later date.

The dismissal of any application pursuant to subsection (2) shall be without prejudice to the making by the chargee of a fresh application on the same grounds; but if the chargor appeared at the time fixed for the hearing, the application shall not be entertained until the chargee has paid to the chargor the costs of that appearance, as allowed by the Land Administrator.

In the circumstances, this Court finds that there was no breach of statutory duty and no violation of the principles of natural justice.

For the reasons above, this Court finds that the Order for Sale granted by the Second Defendant was validly made in accordance with the National Land Code.

Accordingly, Enclosure 1 is dismissed with costs assessed at RM5,000.00 to the First Defendant and RM2,000.00 to the Second Defendant. Dated: 12 December, 2025 - sgd - (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA, PENANG CIVIL DIVISION NCVC 1 Counsel: For the Applicant : Bek Shuang Lee Chan Jia Seng (Messrs Ong And Manecksha) For the 1st Respondent : Norazira Binti Ab Rahman (Messrs Salina Lim Kim Chuan & Co.) For the 2nd Respondent : Siti Hafiza Binti Jaafar (Pejabat Penasihat Undang-Undang