Mulpha International Bhd v Seri Ehsan (Sepang) Sdn Bhd (Dahulunya Dikenali Sebagai Mulpha Ppns Sdn Bhd) (BA-24NCvC-545-03/2023)

17.

7.2020 UNDER SUIT NO. 22NCVC- 57-01/2015; IN THE MATTER OF THE CHARGE UPON LANDS HELD UNDER PN 63017 LOT 15777 MUKIM TANJONG 04/05/2026 14:25:59 BA-24NCvC-545-03/2023 Kand. 37 63016 LOT 15776 MUKIM TANJONG 63015 LOT 15775 MUKIM TANJONG 63020 LOT 15781 MUKIM TANJONG 63010 LOT 15760 MUKIM TANJONG 63009 LOT 15759 MUKIM TANJONG 63008 LOT 15758 MUKIM TANJONG 63007 LOT 15757 KUALA LANGAT MUKIM TANJONG DUABELAS, PN 63002 LOT 15755 KUALA LANGAT MUKIM TANJONG DUABELAS, PN 63005 LOT 15756 KUALA LANGAT MUKIM TANJONG DUABELAS BY WAY OF PRESENTATION NO. 63462/2022; IN THE MATTER OF THE LIEN-HOLDER CAVEATS REGISTERED UPON LANDS HELD BY SERI EHSAN (SEPANG) SDN BHD BY WAY OF PRESENTATION NOS: 20867/2012, 30526/2018, 30527/2018, 30528/2018, 30530/2018, 30545/2018, 30546/2018, 30560/2018, 30566/2018, 52576/2018, 52578/2018, 52584/2018, 52587/2018, 52590/2018, 52594/2018, 52598/2018, 52599/2018, 52600/2018, 52601/2018, 52602/2018, 52603/2018, 52605/2018, 52608/2018, 52609/2018, 52612/2018, 52614/2018, 52616/2018, 52617/2018, 52618/2018, 52619/2018, 52620/2018, 52622/2018, 52626/2018; IN THE MATTER OF ORDERS 31 AND 83 RULES OF COURT 2012; BETWEEN MULPHA INTERNATIONAL BHD. (COMPANY NO. 19764-T) …PLAINTIFF SERI EHSAN (SEPANG) SDN. BHD. (FORMERLY KOWN AS MULPHA PPNS SDN BHD) [COMPANY NO. 199301015684 (270424-A)] …DEFENDANT

Enclosure 22 is the Defendant’s application to set aside the Order for Sale dated 6.3.2024.

The Plaintiff, Mulpha International Bhd, is the judgment creditor and security holder over the Defendant’s lands. The Defendant, Seri Ehsan (Sepang) Sdn Bhd, is the registered proprietor of those lands and the judgment debtor.

The Order for Sale concerns several parcels of land owned by the Defendant in Mukim Tanjong Duabelas, Kuala Langat, which are subject to charges and lien-holder caveats in favour of the Plaintiff as security for the judgment sum.

The Plaintiff and the Defendant entered into a Share Sale Agreement and a Settlement Agreement in 2012. Under the Settlement Agreement, the Defendant owned multiple parcels of land, which were treated as security for repayment of intercompany loans. A Power of Attorney dated 18.10.2012 was executed by the Defendant in favour of the Plaintiff to manage and deal with those lands.

On 17.7.2020, the High Court in Shah Alam in Civil Suit No. 22NCvC-57-01/2015 entered judgment against the Defendant and others for the sum of RM301,506,429.00 together with interest. The judgment also recognised that the Power of Attorney remained valid until full settlement of the judgment sum.

Following the Defendant’s failure to satisfy the judgment sum, the Plaintiff commenced these proceedings by Originating Summons seeking an order for the sale of the charged lands and lands subject to lien-holder caveats.

The Defendant was legally represented in the Originating Summons proceedings but did not file an affidavit in reply or attend the hearing. On 6.3.2024, the Court granted the Order for Sale.

The Defendant did not appeal against that order. By Enclosure 22 filed on 16.10.2025, more than 18 months after the Order for Sale was made, the Defendant now seeks to set it aside.

The reason advanced for the delay is that the Defendant was initially advised by its previous solicitors that the application for sale was proper, and only subsequently, upon receiving a board resolution dated 9.5.2012, it formed the view that the Order for Sale was defective and should be challenged.

From the affidavits and submissions filed, the Defendant seeks to set aside the Order for Sale on the basis that it is a nullity.

The Defendant contends, among others, that:

The Order for Sale is void for non-compliance with section 257 of the National Land Code, as no auction date was fixed.

The lien-holder caveats are invalid as there was no proper deposit of titles or authorisation.

The Power of Attorney is insufficient, does not identify the lands, and was not properly registered or deposited; and

The High Court judgment relied upon is merely declaratory and does not support an application under section 281.

On this basis, the Defendant submits that the order ought to be set aside ex debito justitiae.

The Plaintiff opposes the application on several grounds as follows:

The application is filed after an inordinate delay with no satisfactory explanation.

The Order for Sale is a perfected final order. In the absence of fraud, illegality, or want of jurisdiction, this Court is functus officio.

Section 257 has been complied with as the order itself provides that the sale is to be held not less than one month after the date of the order, or as soon as may be after, making the timeline ascertainable.

The lien-holder caveats and Power of Attorney are valid and form part of a composite security arrangement under the Settlement Agreement.

The High Court judgment expressly adjudged a specific sum to be due and owing and is not merely declaratory.

Section 257(1)(b) of the National Land Code provides that an Order for Sale must “require the sale to be held on, or as soon as may be after, a date specified therein, being a date not less than one month after the date on which the order is made.” The provisions are as follows: “257. Matters to be dealt with by order for sale.

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

provide for the sale to be by public auction;

require the sale to be held on, or as soon as may be after, a date specified therein, being a date not less than one month after the date on which the order is made;

…”

The Federal Court in Maimunah Megat Montak v Mayban Finance Bhd [1996] 1 MLRA 446 held that the requirements of section 257(1)(a) to (d) are mandatory. Non-compliance with those requirements may invalidate an order for sale.

This position was further considered by the Court of Appeal in Diamond Peak Sdn Bhd v United Merchant Finance Bhd [2003] 1 MLRA 210. In that case, the order for sale did not specify any auction date but left the date to be fixed subsequently. The Court of Appeal held that such an order failed to comply with section 257(1)(b) and was therefore invalid. It further held that the defect could not be cured by a subsequent order fixing the auction date, nor by reliance on the slip rule, as the omission was not a clerical error.

The Court of Appeal emphasised that where an order for sale does not provide a date for the auction sale, it runs foul of section 257(1)(b) and cannot be treated as a valid order.

However, the consequences of such non-compliance must still be considered in light of the broader principles governing the setting aside of perfected orders. The Federal Court in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 held that once a judgment or order is perfected, the Court is functus officio and may only set it aside in limited circumstances, namely fraud, illegality, or want of jurisdiction.

Accordingly, not every defect or non-compliance will render an order a nullity in the strict sense. A distinction must be drawn between:

A defect amounting to a contravention of a substantive statutory requirement going to jurisdiction, which renders the order liable to be set aside ex debito justitiae; and

An error or irregularity within jurisdiction, which renders the order voidable and subject only to appeal.

This distinction is consistent with earlier authorities such as Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143, where the Court held that an order made within jurisdiction, even if erroneous, is not void.

The Court must therefore examine the nature and effect of the alleged non-compliance with section 257 in each case to determine whether it renders the order a nullity, or merely an irregularity. Analysis and Findings Section 257(1)(b) of the National Land Code

I now consider the Defendant’s reliance on non-compliance with section 257(1)(b) of the National Land Code.

The Defendant’s case is premised on the contention that the Order for Sale is a nullity and may be set aside ex debito justitiae. The applicable legal framework is that stated by the Federal Court in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393. A perfected order may only be set aside in limited circumstances, namely where there is fraud, illegality, or want of jurisdiction. Outside these categories, the Court is functus officio and the remedy lies by way of appeal.

It is therefore necessary to determine whether the alleged non-compliance with section 257(1)(b) renders the Order for Sale a nullity in the jurisdictional sense contemplated in Badiaddin.

The Defendant relies on the decision of the Court of Appeal in Diamond Peak Sdn Bhd v United Merchant Finance Bhd [2003] 1 MLRA 210. In that case, the order for sale provided that the auction was to be held on a date to be fixed, with the qualification that such date shall not be less than one month after the date of the order. The Court of Appeal held that such an order did not comply with section 257(1)(b), and was therefore invalid. It further held that such defect could not be cured by a subsequent order or by reliance on the slip rule.

I accept that on a strict reading of Diamond Peak, the absence of a specific calendar date in the Order for Sale in the present case would amount to non-compliance with section 257(1)(b). The Defendant’s complaint on this point is therefore not without basis.

However, the question does not end with a finding of non-compliance. The critical inquiry, in line with Badiaddin, is whether such non-compliance amounts to a contravention of a substantive statutory prohibition going to jurisdiction so as to render the Order for Sale a nullity.

In this regard, I am not satisfied that the Defendant has established any want of jurisdiction, breach of natural justice, or illegality. The High Court had jurisdiction over the subject matter and the parties, and had the power under the National Land Code to grant an order for sale. The Defendant was served with the Originating Summons and was legally represented, but chose not to participate in the proceedings.

The alleged non-compliance with section 257(1)(b) relates to the form in which the order was drawn, namely the absence of a specific calendar date for the auction. It does not affect the existence of the Court’s power to grant the Order for Sale. In these circumstances, the defect, even if established, does not go to jurisdiction.

Even if I am wrong and the Order for Sale does not strictly comply with section 257(1)(b), I am not satisfied that such non-compliance, in the circumstances of this case, amounts to a contravention of a substantive statutory prohibition going to jurisdiction so as to render the Order for Sale a nullity. The defect concerns the manner in which the order was framed, and not the Court’s authority to make the order.

Accordingly, the Defendant has not brought this case within the limited categories identified in Badiaddin. The Order for Sale, having been perfected, remains valid and binding unless set aside on appeal.

In these circumstances, the Court is functus officio. The Defendant cannot invoke the Court’s inherent jurisdiction to set aside the Order ex debito justitiae. The proper remedy, if any, lay by way of appeal and not by way of this application.

The Defendant’s attempt to characterise the Order for Sale as a nullity is therefore not made out. Lien-holder caveats and deposit of titles

The Defendant submits that the lien-holder caveats are invalid due to the absence of proper deposit of titles and lack of authorisation. On the evidence, the Defendant executed a Power of Attorney pursuant to the Settlement Agreement, and the Plaintiff held the titles as security.

The Defendant’s reliance on the alleged absence of board resolutions is, in substance, an internal corporate matter. There is no evidence that such an alleged deficiency affects the validity of the instruments as against the Plaintiff. This is not a case where titles were deposited without the consent of the proprietor.

These complaints do not go to the jurisdiction. They relate to the underlying validity of the security arrangement and ought to have been raised in the Originating Summons proceedings.

The Defendant further contends that the Power of Attorney is defective, does not identify the lands, and was not registered or deposited.

On the evidence, the Power of Attorney forms part of a composite arrangement together with the Settlement Agreement. The lands are identifiable by reference to that agreement. There is no requirement that a Power of Attorney must independently restate each parcel of land if the property is otherwise objectively identifiable.

As to the allegation of non-registration or non-deposit, the Defendant relies on a Land Office letter. However, there is no clear evidence that the Power of Attorney relied upon by the Plaintiff was not deposited or used in the relevant applications. In any event, even if there were non-compliance, such matters do not affect the Court’s jurisdiction to grant the Order for Sale. Nature of the High Court judgment

The Defendant argues that the judgment is merely declaratory and does not satisfy section 281 of the National Land Code. This submission is without merit. The judgment expressly adjudged that the sum of RM301,506,429.00, together with interest, is due and owing. It is therefore a judgment for payment of a specific sum. Delay and functus officio

The Order for Sale was made on 6.3.2024. The Defendant did not file any affidavit in reply, did not attend the hearing, and did not appeal. The present application was filed more than 18 months later.

The Defendant explains the delay on the basis that it was initially advised that the proceedings were in order and only later, upon appreciating the significance of a board resolution dated 9.5.2012, formed the view that the order was defective.

This explanation is not satisfactory. It does not constitute new evidence. There is no evidence that the resolution was unavailable at the material time. The explanation amounts to no more than a change in legal advice or appreciation. This, in my view, does not justify reopening a perfected order.

The principle in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 (FC) applies. Once a regularly obtained order has been perfected, it is res judicata and cannot be re-litigated. Matters which could and should have been raised earlier cannot be raised in subsequent proceedings.

In the present case, the Defendant has not established fraud, illegality, or want of jurisdiction. As no nullity is established, the Defendant cannot rely on ex debito justitiae principles to avoid the consequence of delay. The Order for Sale remains valid and binding, and this Court is functus officio.

Taking the Defendant’s case at its highest, the alleged defects do not disclose any want of jurisdiction or fundamental illegality. At most, they raise procedural or factual issues which ought to have been raised earlier. They do not justify setting aside the Order for Sale.

For the reasons stated above, I find that the Defendant has failed to establish that the Order for Sale is a nullity or that there is any basis to set it aside.

Enclosure 22 is therefore dismissed with costs of RM5,000, subject to the allocator. Dated this: 4th May 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiff : Tan Shang Neng together with Lam Chin Yu Messrs Tan Shang Neng For the Defendant: T Gunaseelan together with