Kaveat ini difailkan untuk melindungi kepentingan kami sebagai pembeli Loji tersebut menurut Perjanjian Jual Beli tersebut sebelum guaman sivil ini selesai. [19] In fact, in essence this Court should not concern itself on this contention which was omitted by the Defendant itself in Form 19B. 13 It is already trite in our local jurisdiction that a caveator should not be given leeway to justify a caveat on a different ground than what was set out in Form 19B. And this Court indeed agrees to this rule as allowing a caveator to do as such would indicate that the Court condones frivolous lodgement of caveats or lodgement of encompassing blanket caveats in which a caveator is free to refer to any interest although such interest was never mentioned in Form 19B. This proposition defeats the entire spirit of the provision in that a caveator must give a precise description of the interest or rights the caveator is protecting. This Court finds valuable guidance in Kamalanathan Ratnam J’s decision in the case of Soon Seng Co Sdn Bhd v Toko Palayakat Jamal (M) Sdn Bhd (formerly known as Abdul Jamal Trading Sdn Bhd) [1999] 5 MLJ 75 in which the Court had held: “It must be noted that at the second stage the caveator is not allowed to justify the retention of the caveat on a ground different from that set out in his Form 19B, and the Court is required to subject the caveator’s affidavit evidence in support of the caveatable interest to ‘meticulous scrutiny’.” 14 See also Mok Yong Kong & Anor v Mok Yong Chuan [2002] 2MLJ 718 [20] Thus, the purported proposition is verily irrelevant to the present Originating Summons to remove the Defendant’s caveat which was which was lodged on the sole basis of protecting the Defendant’s alleged interests under the ASA and not any other contracts. [21] It naturally entails that whatever separate action the Defendant currently has against the Plaintiff (on the proposition) besides the present case, should not be of any concern to this Court in determining the present Originating Summons. The present Originating Summons was filed to remove a caveat in which was lodged on the sole basis of protecting the Defendant’s alleged interests under the ASA. There is no reason whatsoever for this Court to concern itself on a purported proposition which is altogether alien and foreign to the caveat lodged onto the subject land. [22] Nonetheless, only for the sake of convenience and completion, this Court shall still address this erroneous contention on the 15 proposition contended by the Defendant. It is well within this Court’s jurisdiction to address the existence or non-existence of the contract although the same issue is being heard in another Court as it is this Court’s duty to determine whether or not the Defendant has a caveatable interest, and the contention on the proposition is the final nail to the coffin to put the Defendant’s case (in retaining the caveat) to its inevitable demise. [23] This erroneous contention on the supposed proposition was based on two letters issued by PKFZ to the Defendant both dated 15.05.2015. The 1st letter of the same date was a reply to the Defendant’s earlier proposition to be the next lessee in line after BSP (“1st Letter”). The 2nd letter of the same date was a reply to the Defendant’s request for support in its bid under the ASA. (“2nd Letter”). It must be clearly minded from this early juncture that the two letters were referring to two altogether separate matters. The 1st Letter referring to the proposition, while the 2nd Letter referring to the ASA. [24] In the 1st Letter, PKFZ (replying to the Defendant’s proposition) had merely and only agreed to CONSIDER the proposition of the Defendant to be the next lessee after BSP. And this consideration 16 to agree was pre-conditioned with numerous considerations inclusive of the vacant possession of the leased land, which never at all material times materialised or returned to the Plaintiff. Thereto, the 1st Letter was never a representation of the Plaintiff’s agreement to the proposition in any shape or form. [25] In the 2nd Letter, PKFZ (replying to the Defendant’s request for support in its ASA bid) had merely furnished support to the ASA which does not concern the granting of any lease over the leased land at all. The ASA only concerns the assets of BSP and any support however strong or fervent by the Plaintiff, is not at all any indication of the Plaintiff’s agreement to grant lease under the proposition. [26] Clearly, the nexus and inference drawn by the Defendant regarding these two letters is infinitely ill-conceived, erroneous, and to an extent misleading. [27] The 2nd Letter does not supersede the 1st Letter. Even the Defendant treats the ASA and the proposition as two different contracts. Similarly, the two letters refer to different contracts. The 1st Letter indicates that the plaintiff only agreed to consider the 17 proposition. The 2nd Letter in the meantime only concerns the ASA which should not concern the Plaintiff at all as the Leased Land was never BSP’s asset to begin with. Thus, whatever representation in the 2nd Letter clearly does not supersede the 1st Letter. [28] Therefore, it is this Court’s finding that there is NO contract between the Plaintiff and the Defendant under the proposition that would compel the Plaintiff to grant lease to the Defendant. [29] Thus, it naturally entails that the contention on the proposition would ultimately fail the test Luggage Distributors for a total absence of a caveatable interest. D. THE CAVEAT WAS GRAVELY DEFECTIVE AND OUGHT TO BE REMOVED [30] As highlighted above, the Defendant had absurdly caveated the entirety of the subject land rather than the infinitely smaller leased land which was relevant to the Defendant’s alleged interest. The ultimate effect of the Defendant’s error and mishap is that the Defendant had effectively hindered the rights and interests of all 18 other 96.8% of other plots of the subject land which has nothing to do with the Defendant. It was never right, and utterly wrong for the Defendant to unlawfully and unduly encroach on other people’s rights in the Defendant’s overzealous bid to protect its own alleged interest. A simple reading of the Defendant’s Form 19B would reveal this grave defect: a. Firstly, instead of using the word “kepentingan” (interest) the Defendant had expressly opted to bind the caveat to the entirety of the “tanah” (land): “Kami Artistic Biofuels Sdn Bhd… memohon supaya dimasukkan suatu kaveat ke dalam hakmilik tanah yang tersebut dalam jadual bawah ini, supaya menyatakan sebagai mengikat – *tanah itu sendiri/kepentingan yang tersebut dalam jadual itu. b. Secondly, in the schedule to Form 19B, the Defendant had stated that the “Bahagian Tanah” it intends to bind to be as “Semua” or “entirety”. 19 [31] It was repeated many times in the Code (either in the sections and/or the Forms) that there is an important distinction between lodging a caveat for a specific interest and lodging a caveat against the whole land. It is the spirit of the Code that caveators must be specific, accurate, and precise in its lodgement whether it intends to bind the whole land or a specific interest on the land. And this is the exact spirit that the Defendant has defiled. [32] This grave defect had even been admitted by the Defendant in its own Submissions. It was admitted by the Defendant that: “…we (the Defendant) accept that the failure of the Form 19B to expressly limit the effect of the Caveat to protect Artistic’s interest in only the BSP Land may have resulted in the Caveat preventing PKA from dealing with the rest of the Port Klang Free Zone” [33] The Defendant admits this failure. Not even any plans were attached to the Form 19B to clearly and precisely demarcate the Defendant’s alleged interest from the rest of the subject land. And the Court’s sentiment against this grave non-compliance is time- 20 celebrated and trite. The Supreme Court in the case of Tan Heng Poh v Tan Boon Thong & Ors [1992] 2 MLJ 1 has clearly expressed the gravity and unsustainability of a defective caveat which does not make the precise demarcation between the land and the purported interest of the caveator: “The appellant’s caveat contained a serious defect in failing to comply with the requirement of Section 323(2) of the Code, as it was not expressly specified that the caveat was intended to bind only his limited interest in the eight parcels of land and not the whole land. Once the caveat was found to be legally unsustainable, the caveatee was entitled to have the caveat removed” “The main ratio of the judgment of this court in Mosbert Bhd (in Liquidation) v Stella D’Cruz is to the effect that once a caveat is shown to be defective, it is no duty of the court to save it by amendment” [34] The Supreme Court also held that: 21 “Section 323(2) expressly requires, firstly, that Form 19B should be used, and secondly, that the caveator must specify therein not only the nature of the claim on which his application is based but also to state expressly whether the caveat is to bind the land or a particular interest only. In our view, non-compliance with these requirements may be fatal and may be a valid ground for removing caveat at the instance of the appellant.” [35] Thus, on the same note, this Court also finds that the non-compliance is grave as well as serious and the caveat is ultimately defective and ought to be removed. The extent of the error was absurdly grave in that it affected a total of 96.2% of the subject land which has no relevance at all to the Defendant. [36] The Defendant in a desperate bid to salvage the gravely defective caveat had referred to the case of Upmarket Development Sdn Bhd v Sriera Development Sdn Bhd [2011] 4 MLJ in contending that the Court ought not to remove the caveat as the Defendant had substantially complied with the provision albeit not in full-compliance. However, this Court simply distinguishes the case of Upmarket Development on the simple ground that the facts of 22 Upmarket Development are massively different from the present case. The caveator in Upmarket Development had at the very least appended a plan with the caveat application which clearly demarcates the part of the land which is of the caveator’s interest. The Defendant in the present case however, did no such thing. In fact, it is more probable than not that the substantial effect of the Defendant’s grave error is that it would mislead a reasonable person to believe that the Defendant has a caveatable interest over the entirety of the subject land, which is devoid of any truth. [37] Thus, considering the grave defect and the grave effect of the caveat to the entirety of the subject land, this Court finds that the caveat is immensely defective and ought to be removed by this Court. There are also no reasons at all for this Court to exercise its discretion to amend the caveat considering the massive extent of the defect as well as the total absence of caveatable interest to the benefit of the Defendant. E.