OCBC BANK (MALAYSIA) BERHAD v Irfan Asfaar Bin Abdullah(dahulunya Nagarajan A/l Renganathan) (BA-38-1718-05/2025)

IRFAN ASFAAR BIN ABDULLAH (DAHULUNYA NAGARAJAN A/L RENGANATHAN) (No. K/P: 841208-14-5679)

JEEVANATHAN A/L MANIKAM (No. K/P: 660924-08/5141) …DEFENDAN-DEFENDAN GROUNDS OF DECISION (Stay Of Proceedings)

By a notice of appeal to the Judge in Chambers in Enclosure 62 (“Appeal”), the Plaintiff appealed against the decision of the Learned Senior Assistant Registrar, which granted a stay of proceedings of the Plaintiff’s Notice of Application in Enclosure 1 to fix the auction date and reserve price, involving Geran Mukim 2822 Lot No.41441 (“Lot 41441”) and Geran Mukim 2823 Lot No.41442 (“Lot 41442”), both located in Sungai Long, Mukim Cheras, Daerah Hulu Langat, Selangor Darul Ehsan.

On 12 February 2026, I allowed the Appeal and set aside the Learned Senior Assistant Registrar’s decision, with costs of RM2,000.00 as agreed by the parties.

I will now give my reasons for doing so.

4.

Are there any special circumstances that justify a stay of proceedings of the Plaintiff’s application in Enclosure 1 to fix the auction date and reserve price?

In 2009, the Defendants purchased from Tanming Impian Sdn Bhd, Lot 41441 and Lot 41442 together with a 2-storey bungalow to be erected thereon, for a valuable consideration of RM2,112,000.00 (“Properties”).

In 2009, the Defendants obtained a term loan facility from the Plaintiff in the sum of RM1,921,131.00 to purchase the Properties from Tanming Impian Sdn Bhd (“Term Loan”).

To secure repayment of the Term Loan, the Defendants created a legal charge over the Properties in favour of the Plaintiff under the National Land Code (Act 828) (“Charge”).

A few years after the Term Loan was disbursed, it was subsequently restructured, and a new term loan limit of RM2,245,100.00 was fixed (“Restructured Term Loan”).

The Defendants defaulted on the repayment of the Restructured Term Loan.

Accordingly, the Plaintiff exercised its right under the Charge by commencing foreclosure proceedings against the Defendants at Hulu Langat Land Office (“Land Office Foreclosure Proceedings”).

On 4 July 2019, the Pentadbir Tanah Daerah Hulu Langat made an Order for Sale (“Land Office Order For Sale”).

After 4 unsuccessful public auctions conducted under the Land Office Order For Sale, the Pejabat Tanah Daerah Hulu Langat, by a letter dated 27 February 2020, referred the matter to the High Court.

Accordingly, the Plaintiff filed foreclosure proceedings against the Defendants in the Shah Alam High Court via Originating Summons No.: BA-24FC-819-08/2023 (“High Court Foreclosure Proceedings”).

The Defendants opposed the High Court Foreclosure Proceedings.

On 23 April 2024, the Plaintiff obtained an Order for Sale in the High Court Foreclosure Proceedings (“High Court Order For Sale”).

On 21 May 2025, the Plaintiff filed the application in Enclosure 1 to fix the auction date and reserve price (“Notice of Application To Fix Auction Date And Reserve Price”).

Between 4 August 2025 and 12 August 2025, the Defendants filed 2 main affidavits and 2 corrective affidavits to oppose the Notice Application To Fix Auction Date And Reserve Price.

After filing the aforesaid 4 affidavits:

on 23 August 2025, to challenge the High Court Order For Sale, the Defendant filed a civil suit against the Plaintiff and 2 others via Shah Alam High Court Civil Suit No.: BA-22NCVC-376-08/2025 (“New Civil Suit”), among others, for conspiracy, fraud, negligent misrepresentation, innocent misrepresentation, non-compliance with Form 16A and Form 16D of the National Land Code (Act 828) and wrongful inclusion of Lot No. 41441 in the Charge document; and

on 27 August 2025, the Defendants filed an application in Enclosure 15 to stay the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price pending disposal of the New Civil Suit (“Defendants’ Stay Application”). In prayer 2 of the Defendant’s Stay Applicant, the Defendants sought the following relief: “Suatu perintah bahawa prosiding Notis Permohonan bertarikh 21.5.2025 yang difailkan oleh Plaintif di bawah Permohonan Perlaksanaan No:BA-38-1718-05/2025 berikutan

Mahkamah bertarikh 23.4.2024 yang melibatkan tanah di Lot 41441, Hakmilik GM 2822, Mukim Cheras, Daerah Hulu Langat, Selangor Darul Ehsan dan rumah di Lot 41442, Hakmilik GM 2823, Mukim Cheras, Daerah Hulu Langat, Selangor Darul Ehsan ini ditangguhkan dan digantungkan sementara menunggu keputusan muktamad bagi kes Mahkamah Tinggi Shah Alam, Guaman Sivil No:BA-22NCvC-376-08/2025” [Emphasis added]

The Defendant’s Stay Application was allowed by the Learned Senior Assistant Registrar (“Stay Order”).

The Plaintiff was aggrieved by the Stay Order and filed the Appeal.

The Learned Counsel for the Defendants argued that there were special circumstances and that the Stay Order should be maintained.

I disagree with the arguments made by the Learned Counsel for the Defendants.

I am of the view that there are no special circumstances to justify a stay of proceedings of the Notice Of Application To Fix Auction Date And Reserve Price.

I will set out the reasons below. Reason No.1 The Defendants Had Already Taken Steps In The Proceedings Of The Notice Of Application To Fix Auction Date And Reserve Price

Before they filed the Defendants’ Stay Application, the Defendants had already filed these 4 affidavits in the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price:

on 4 August 2025, they filed an ‘Affidavit Jawapan’ in Enclosures 5, 6 and 7;

on 4 August 2025, they filed an ‘Afidavit Pembetulan’ in Enclosure 8;

on 10 August 2025, they filed an ‘Afidavit Tambahan’ in Enclosure 10; and

on 12 August 2025, they filed an ‘Afidavit Pembetulan’ in Enclosure 11, to oppose the Notice Of Application To Fix Auction Date And Reserve Price.

Based on the filing of the aforementioned 4 affidavits, it is clear that the Defendants had already taken steps in the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price, even before they filed the Defendants’ Stay Application.

If the Defendants’ Stay Application were genuine, they would have filed it before filing all the 4 affidavits.

This, the Defendants did not do.

Instead, not only did the Defendants take active steps in the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price, but they also mentioned in their affidavits that the Plaintiff’s valuation of the Properties at RM4.5 million was too low and should not be used.

To the Defendants, the reserve price of the Properties should be fixed at RM8.5 million, and they said so three times:

in Enclosure 5 at page 35, the First Defendant said this: “(hh) Selain itu, saya dan Defendan Kedua telah membuat pengaturan untuk mendapatkan laporan penilaian hartanah dari Hartamas Valuation Consultancy Sdn. Bhd (905432-D) yang telah disediakan oleh penilai professional berdaftar. E-mel bertarikh 16.7.2025 pada jam 5:16 petang menunjukkan bahawa anggaran penilaian hartanah ialah RM8,000,000.00 tetapi tertakluk kepada pemerikasaan dan semua maklumat berkaitan. Walau bagaimanapun, penilaian muktamad akan diberikan dengan angka penilaian yang tepat dalam masa terdekat dan saya akan membuat Afidavit Tambahan selewat-lewatnya pada 15.8.2025 untuk memaklumkan perkara yang sama.” [Emphasis added]

in Enclosure 10 at page 6, the First Defendant said this: “16. Sekiranya lelongan diteruskan pada harga rizab RM4,500,000.00 seperti dalam laporan TD Aziz Sdn. Bhd., saya dan Defendan Kedua akan kehilangan ekuiti hartanah berjumlah kira-kira RM4,000,000.00, iaitu perbezaan antara nilai pasaran sebenar RM8,500,000.00 (muka surat 9; Eksibit “IR-15A” disini) dan nilai rizab Plaintif RM4,500,000.00 berdasarkan laporan terdahulu dimana Plaintif tidak dapat memastikan tarikh sebenar laporan terdahulu dimana Plaintif tidak dapat memastikan tarikh sebenar laporan TD Aziz Sdn. Bhd. disediakan atau dikeluarkan.” [Emphasis added]

in Enclosure 10, page 8, the First Defendant said this: “ Perintah-Perintah yang Dipohon:

Menolak laporan penilaian TD Aziz Sdn. Bhd. (Eksibit “IR-13”; Afidavit Jawapan; Lampiran 15) sebagai asas penetapan harga rizab;

Menerima laporan penilaian Hartamas Valuation & Consultancy Sdn. Bhd. (Eksibit “IR-15A” disini) sebagai asas yang lebih tepat, menyeluruh dan munasabah bagi penetapan harga rizab;

Secara alternatif, mengarah supaya penilaian semula dibuat oleh penilai bebas yang neutral, dilantik oleh Mahkamah, untuk menentukan nilai pasaran sebenar hartanah Lot 41441 dan Lot 41442;” [Emphasis added]

All the above shows that it was an afterthought on the part of the Defendants to file the Defendants’ Stay Application:

after they had actively participated in the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price; and

after they had requested that their proposed reserve price of RM8.5 million be used to fix the reserve price. Reason No.2 Abuse of the Court Process

In the Defendants’ Stay Application, the Defendants sought relief to have the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price stayed pending the disposal of the New Civil Suit, even though:

there was no appeal filed against the High Court Order For Sale; and

there was no stay of execution of the High Court Order For Sale. 12 34. The filing of the Defendants’ Stay Application is therefore an abuse of the Court’s process. Reason No.3 The High Court Order For Sale Was Obtained Regularly, And No Challenge Was Made By The Defendants For More Than 450 Days

As per the terms of the High Court Order For Sale, the Defendants were not only represented by a firm of solicitors, but they also filed their affidavits in opposition in the High Court Foreclosure Proceedings.

The High Court Foreclosure Proceedings were heard inter parte, and the High Court Order For Sale was obtained regularly.

After opposing the High Court Foreclosure Proceedings, the Defendants did not file any appeal to the Court of Appeal against the High Court Order For Sale.

By not challenging the High Court Order For Sale:

the Defendants had taken the position that they were indebted to the Plaintiff under the Restructured Term Loan and Charge;

the High Court Order For Sale was correctly made; and

the High Court Order For Sale must be obeyed without fail.

There was a period of more than 450 days between the date of the High Court Order for Sale and the first affidavit in opposition filed by the Defendants in the proceedings of the Notice Of Application To Fix Auction Date And Reserve Price.

This period of more than 450 days shall be known as the Unchallenged Period.

After taking the position that the High Court Order For Sale was correctly made, the Defendants suddenly changed their mind 16 months later and filed the New Civil Suit.

The Defendants should not be allowed to approbate and reprobate (Cheah Theam Kheng v City Centre Sdn Bhd & Other Appeals [2012] 2 MLRA 125; [2011] 2 MLRA 660; [2012] 1 MLJ 761; [2012] 2 CLJ 16; MK Cooling Services & Anor v Chong Kek Fong [2025] MLRHU 1959; [2025] MLJU 2818; [2025] CLJU 2254). Reason No.4 The Plaintiff Has The Ability To Compensate The Defendants

Here, the Plaintiff is merely exercising its right under the Charge to recover the amount due and payable from the Defendants.

The Defendants should have focused on the Plaintiff’s inability to compensate them if the New Civil Suit were decided in their favour.

This, the Defendants did not do.

Since the Plaintiff had already provided the Defendants with the Term Loan and the Restructured Term Loan, the Plaintiff’s ability to pay compensation or damages to the Defendants does not arise at all.

In any case, the Plaintiff, being a licensed financial institution, has the ability to pay compensation to the Defendants if the decision in the New Civil Suit favours them. Reason No.5 Merits Of The New Civil Suit Not To Be Considered

The Defendants’ main complaint is based on the letter of offer dated 20 April 2009, in which the Defendants contend that Lot No. 41441 was not intended to form part of the Properties to be charged in favour of the Plaintiff.

To challenge the High Court Order For Sale, the Defendants simply bypassed the appeal process by filing the New Civil Suit 16 months after the High Court Order For Sale was made.

All the complaints raised by the Defendants in the Defendants’ Stay Application are the so-called ‘merits’ of their claim in the New Civil Suit.

Merits of an appeal should not be considered in a stay of proceedings or stay of execution application (Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 1 MLRA 536; [2003] 4 CLJ 1; [2004] 1 MLJ 257).

Likewise, I am of the view that the merits of the New Civil Suit should not be considered in the Defendants’ Stay Application, as no appeal was filed against the regularly obtained High Court Order For Sale. Reason No.6 Denying The Plaintiff From Reaping The Fruits Of Litigation For A Loan Given 16 Years Ago

If the Defendants’ Stay Application were granted, it would prevent the Plaintiff from reaping the fruits of its litigation to recover the outstanding loan from the Defendants, which were given to them 16 years ago, particularly given that no appeal has been filed with the Court of Appeal against the High Court Order for Sale.

If the Defendants’ Stay Application were granted, the execution of the High Court Order For Sale would be stayed indefinitely until the disposal of the New Civil Suit, which was filed only in August 2025.

As far as the disposal of the New Civil Suit is concerned, priority will be given to older cases filed before August 2025.

This will prejudice the Plaintiff in its attempt to recover the amount due and owing from the Defendants, as no appeal was filed against the High Court Order For Sale. Reason No.7 Tactical Manoeuvre

Instead of appealing to the Court of Appeal, the Defendants chose to file the New Civil Suit 16 months after the High Court Order For Sale was made, and after the Defendants had taken an active part in the proceedings of the Notice Of Application To Fix Auction Date & Reserved Price Application by filing several affidavits and requesting that a higher reserve price be fixed.

Here, there is no evidence that the Defendants made any payment to the Plaintiff to settle the outstanding loan, nor any proof that the Defendants made a payment under protest following the High Court Order For Sale.

The Defendants’ Stay Application is merely a tactical manoeuvre to prevent the Plaintiff from having the auction date and reserve price fixed.

For the foregoing reasons, there are no special circumstances to justify the Defendants’ Stay Application.

The Appeal is allowed, with costs of RM2,000.00, as agreed by the parties.

The decision of the Learned Senior Assistant Registrar is hereby set aside. Dated this 28th day of February 2026 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiff : Shantini Koshy A/P Cherian Koshy (Messrs Yong & Rakan Rakan) Counsel for the Defendants : Pauline Prathibha A/P Chandera (Messrs Pauline Prathibha & Associates)