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MA-22NCC-13-08/2025 Kand. 38 20/05/2026 09:16:39 DALAM MAHKAMAH TINGGI MALAYA DI MELAKA DALAM NEGERI MELAKA, MALAYSIA GUAMAN SIVIL NO. MA-22NCC-13-08/2025 BETWEEN PUBLIC BANK BERHAD [Company No: 196501000672 (6463-H)] ...PLAINTIFF
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High Court of Malaysia19 May 2026MA-22NCC-13-08/2025
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“(c) a bare denial of quantum. None of those, individually or in combination, raises a triable issue. [46] In Logan Ravishankar v My IT Asia Sdn Bhd [2015] MLJU 905 (High Court), on which the Defendants rely, the Court was satisfied that the draft defence was "prima facie plausible" and that there were "traces of sham o”
“ither dispense with the Court's evaluation of the merits of the proposed defence and the reasons for delay. [32] The position is reinforced by Khairy Jamaluddin Abu Bakar v Mohd Rasyiq bin Mohd Alwi [2022] MLJU 3464 (High Court), where it was held that the late appearance of a defendant did not entitle that defendant t”
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MA-22NCC-13-08/2025 Kand. 38 20/05/2026 09:16:39 DALAM MAHKAMAH TINGGI MALAYA DI MELAKA DALAM NEGERI MELAKA, MALAYSIA GUAMAN SIVIL NO. MA-22NCC-13-08/2025 BETWEEN PUBLIC BANK BERHAD [Company No: 196501000672 (6463-H)] ...PLAINTIFF
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MDSA DEVELOPMENT SDN BHD (formerly known as Fuyuu Development Sdn Bhd) [Company No: 200801003772 (805056-A)]
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TAN PING HUANG EDWIN @ CHEN BINGHUANG (Singapore NRIC No: S8224254F)
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TAN JUNE TENG COLIN @ CHEN JUNTING (Singapore NRIC No: S8323775I)
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MAYATRADE SDN BHD [Company No: 201401005457 (1081536-U)] ... DEFENDANTS GROUNDS OF JUDGMENT (Encl. 6 — Plaintiff's application under Order 83 rule 4(1) of the Rules of Court 2012) (Encl. 13 — Defendants' application under Order 12 of the Rules of Court 2012)
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INTRODUCTION [1] Two cross-applications come before the Court for determination at the same hearing. They concern the threshold question whether the Defendants are at this stage entitled to defend a claim brought on banking facilities, or whether the Plaintiff is entitled to enter judgment in default of appearance. [2] The Plaintiff is a licensed bank. By Encl. 6, it applies under Order 83 rule 4(1) of the Rules of Court 2012 for leave to enter judgment in default of appearance against all four Defendants for sums said to be outstanding under a Term Loan Facility and an Overdraft Facility. [3] The Defendants oppose Encl. 6 and, by Encl. 13, apply under Order 12 of the Rules of Court 2012 for leave to enter appearance and file a defence out of time. The Memorandum of Appearance was, in fact, filed on 2 October 2025, some twenty nine days after the time limited for appearance had expired. [4] The two applications stand or fall on essentially the same matrix. They turn on three connected questions: whether service of the originating process was good and effective service in law; whether the Defendants have shown a meritorious reason for the delay; and whether the proposed defence is bona fide and arguable.
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MATERIAL FACTS AND PROCEDURAL HISTORY [5] By a Facility Agreement dated 11 February 2015, the Plaintiff granted the First Defendant a Term Loan Facility of RM3,350,000.00 and an Overdraft Facility of RM2,500,000.00. The Second and Third Defendants, both Singapore citizens, executed Letters of Guarantee in their personal capacities. The Fourth Defendant gave a corporate guarantee and, in addition, executed three Memoranda of Charge in Form 16A dated 30 January 2015 over three pieces of land in the Mukim of Durian Tunggal, District of Alor Gajah, in the State of Melaka, as third-party chargor. These matters appear from the affidavit of Lim Chee Hwa affirmed on 18 September 2025 (Encl. 7) and are not put in issue on the affidavits. [6] On 10 July 2025, the Plaintiff issued Notices of Recall and Termination addressed to the Defendants. On 8 August 2025, the Plaintiff filed the Writ of Summons (Encl.1) and Statement of Claim (Encl.2), claiming the sums of RM3,477,582.32 and RM2,547,103.50 (each as at 23 July 2025) under the Term Loan and Overdraft facilities respectively, with continuing interest. [7] On 18 August 2025, the Plaintiff dispatched the sealed Writ and Statement of Claim by prepaid registered post to the addresses of all four Defendants stated in the Facility Agreement. An Affidavit of Service was duly affirmed by Samsuri bin Ithnin on 3 September 2025 (Encl. 4). [8] The time limited for entering appearance expired on 3 September 2025. No appearance had by then been entered. On 4 September 2025, the Court sealed the Certificate of Non-Appearance (Encl. 5). [9] On 19 September 2025, the Plaintiff filed Encl. 6, its application for leave to enter judgment in default. The application was served on the Defendants by registered post on 25 September 2025. [10] On 2 October 2025, the Defendants filed a Memorandum of Appearance (Encl. 9), being thirty-four days after the time limited for appearance. On 7 October 2025 they filed Encl. 13, seeking the Court's leave both to enter appearance out of time and to file a defence (a draft of which was exhibited as "DET-1") out of time. [11] The Defendants' explanation for the delay, on the affidavit of the Second Defendant Tan Ping Huang Edwin affirmed on 7 October 2025 (Encl.14), is that they did not receive the Writ and Statement of Claim by registered post. They depose that the Fourth Defendant first became aware of the proceedings only upon receipt of Encl. 6 on 30 September 2025, and that the First, Second and Third Defendants were then informed of the action by the Fourth Defendant.
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ISSUES FOR DETERMINATION [12] On a proper analysis of the affidavits and the legal framework, three issues arise for determination:
i
(i) Whether the contractual mode of service stipulated in Clause 53.2 of the Facility Agreement, read with Order 10 rule 3 of the Rules of Court 2012, operated to effect good service of the Writ and Statement of Claim on the Defendants ("the service issue");
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(ii) Whether the Defendants have advanced a meritorious explanation for the delay in entering appearance, sufficient to engage the Court's discretion under Order 12 rule 5 read with Order 3 rule 5 of the Rules of Court 2012 ("the delay issue"); and
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(iii) Whether the proposed defence in draft "DET-1" raises a bona fide and arguable defence to the Plaintiff's claim ("the merits issue"). [13] These issues are best addressed in that order, since the disposition of the service issue conditions the analysis of the remaining two.
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STATUTORY AND LEGAL FRAMEWORK [14] The starting point is Order 10 rule 3 of the Rules of Court 2012, which permits service of an originating process in accordance with a contractual mode agreed upon by the parties. Where service is so effected, the writ "shall ... be deemed to have been duly served on the defendant". [15] Clause 53.2 of the Facility Agreement of 11 February 2015 (Encl. 7) provides that any service of legal process — expressly including writs of summons and pleadings required to be served under the Rules of Court 2012 may be sent to the Borrower or any Security Party by prepaid registered post to the address stated in the Agreement, or to the last known address. The clause continues that the document "shall be deemed to have been duly served and duly received ... upon the expiry of forty eight (48) hours after the time of posting". [16] Order 12 rule 5(1) of the Rules of Court 2012 provides that no appearance may be entered after judgment has been entered, except with leave of the Court. Sub-rule (2) provides that, although a defendant is not precluded from entering appearance after the time limited has expired, if he does so "he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time". [17] Order 83 rule 4(1) requires a plaintiff in a charge action to apply to the Court for leave before entering judgment in default of appearance. [18] Order 1A of the Rules of Court 2012 enjoins the Court to have regard to the justice of the case and not allow procedural irregularity, of itself, to defeat substantive rights. The qualification on that broad principle was stated by the Federal Court in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 (Federal Court), where it was held that Order 1A "must not supersede a mandatory requirement of the Rules" and "cannot be invoked when a party intentionally disregards" the Rules.
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ANALYSIS AND DETERMINATION A. The service issue [19] The first question is whether the Defendants are precluded by Clause 53.2 from denying receipt of the Writ and Statement of Claim. [20] The contractual position is not in dispute. The Defendants do not deny that they signed the Facility Agreement of 11 February 2015. They do not deny that the addresses to which the Writ was posted were in fact the addresses stated in the Agreement; indeed, the same addresses are reproduced at paragraph 4 of the draft defence "DET-1". They do not allege any change of address notified to the Plaintiff. The Defendants put their case on a single, narrow factual footing: actual non-receipt. [21] In TA Securities Bhd v Ng Yen Ling [2000] 3 MLJ 743 (High Court), the defendant similarly resisted service on the ground of asserted non-receipt. The contract there contained a deeming clause in materially identical terms. The case was one in which both the contract and Order 10 rule 3(1)(b) of the Rules contained deeming provisions, and that the statutory provision "endorses" the contractual one.Applying the earlier Supreme Court decision in Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 1 MLJ 413 (Supreme Court), held that the words "shall be deemed" connote a conclusive deeming and not a rebuttable presumption. The defendant was, in consequence, "precluded from showing that she did not receive the writ". [22] That analysis is squarely applicable to Clause 53.2. The clause does two things. First, it specifies the mode of service — prepaid registered post to the contractual address or last known address. Second, it deems service to have been "duly served and duly received" upon the expiry of 48 hours after posting. The expression "shall be deemed", in line with Amanah Merchant Bank, carries the meaning "shall be regarded as", and is not framed as a rebuttable presumption. The contractual deeming is, moreover, reinforced by the statutory deeming in Order 10 rule 3. [23] On the evidence, the Affidavit of Service of Samsuri bin Ithnin (Encl. 4) deposes to posting by prepaid registered post on 18 August 2025 to the addresses stated in the Facility Agreement. The Defendants' affidavit in answer (Encl. 16) does not deny that those addresses were and are their correct addresses. They do not allege any change of address. They produce no postal returns, no records of unclaimed mail, and no documentary material capable of displacing the deeming. Their assertion of non-receipt is on bare averment. [24] In those circumstances, by operation of Clause 53.2 read with Order 10 rule 3, the Writ and Statement of Claim must be regarded as having been duly served on, and duly received by, all four Defendants on 20 August 2025, that being 48 hours after posting. The bare denial in the Defendants' affidavit is insufficient to displace the contractual deeming and, on the authorities, cannot do so as a matter of law. [25] Service was therefore good and effective in law. The time limited for entering appearance expired on 3 September 2025, and the Certificate of Non-Appearance was properly sealed by the Court on 4 September 2025. B. The delay issue [26] Encl. 13 is, in substance, an application for an extension of time under Order 3 rule 5, coupled with leave under Order 12 rule 5(2) to take a step in the action — namely the filing of a defence — at a time later than would have been permitted had appearance been entered within time. The framework for the exercise of discretion in such an application was set out in Abdul Rahim Ponniah bin Abdullah v Kulim Intensive Driving Centre Sdn Bhd [2000] 6 MLJ 584 (High Court), which identified four matters for the Court's consideration:
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(i) whether the delay is unjustified or unreasonable;
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(ii) the reasons for the delay;
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(iii) whether the applicant has a good defence; and
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(iv) whether the plaintiff would be prejudiced. [27] These matters are conjunctive in the sense that all must be considered, although no single matter is determinative. The first three may be addressed together in the present case, since they converge on the same factual point. [28] The Defendants' explanation for the twenty nine days delay is, as already noted, that they did not receive the originating process. That explanation has been rejected as a matter of law in the foregoing analysis of the service issue. The deeming provision in Clause 53.2, agreed to by the Defendants themselves, operates to fix them with notice as at 20 August 2025. From that date, the Defendants had fourteen days within which to enter appearance. They did not do so. [29] The Defendants further suggest that the First, Second and Third Defendants only became aware of the action when notified by the Fourth Defendant after the Fourth Defendant had received Encl. 6 on 30 September 2025. That assertion adds nothing of substance. As against the Plaintiff, each Defendant separately covenanted to receive service at the address stated in the Facility Agreement. Internal communications between Defendants do not displace the contractual deeming as against the Plaintiff. Nor have the Defendants explained why a further period of two days elapsed, even on their own asserted date of knowledge, before the Memorandum of Appearance was filed on 2 October 2025. [30] The reliance placed by the Defendants on Order 1A of the Rules is, in the circumstances, misplaced. The Federal Court in Tunku Ibrahim Ismail (above) was clear that Order 1A cannot be used to override a mandatory requirement of the Rules where there has been intentional disregard. While the Court accepts that the Defendants did eventually act once aware of Encl. 6, the legal position remains that they had been served, in accordance with their own contract, on 20 August 2025. The failure thereafter to enter appearance until 2 October 2025 cannot fairly be characterised as the kind of "accidental omission or oversight" to which Order 1A is directed. [31] The decisions of the High Court in Aleykutty James v Syed Putra bin Syed Omar Shahabudin & Anor [1979] 1 MLJ 238b and Wan Mohd Sofian bin Wan Md Saad v MBF Finance Bhd [2000] 5 MLJ 319, on which the Defendants rely, do not advance their case. Those authorities establish only that a defendant may enter appearance at any time before judgment, and that, having entered late appearance, it is necessary for the Court to consider whether further time should be granted to deliver a defence. Neither decision displaces the requirement, under Order 12 rule 5(2), that leave be obtained before service of a defence out of time, nor does either dispense with the Court's evaluation of the merits of the proposed defence and the reasons for delay. [32] The position is reinforced by Khairy Jamaluddin Abu Bakar v Mohd Rasyiq bin Mohd Alwi [2022] MLJU 3464 (High Court), where it was held that the late appearance of a defendant did not entitle that defendant to serve a defence as of right; leave was required. The use of "shall not" in Order 12 rule 5(2) is mandatory in effect, applying the canon of construction of "shall" as a mandatory term in Public Prosecutor v Yap Min Woie [1996] 1 MLJ 169 (Federal Court). That was, of course, a different statutory context, but the principle of construction is general. The mandatory cast of the rule means that the defaulting defendant cannot proceed without leave, and leave will not be given as a matter of course. [33] On these matters, the Defendants have not discharged the burden of showing a meritorious explanation for the delay. The reason advanced non-receipt has failed in law. No alternative reason is pleaded. C. The merits issue [34] The fourth matter under Abdul Rahim Ponniah, and the most substantive issue on the present applications, is whether the proposed defence is bona fide and arguable. This requires examination of the draft pleading at "DET-1". [35] On the affidavits, the following matters are not in dispute. First, that the Facility Agreement of 11 February 2015 was duly executed by the First Defendant as Borrower and by the Second to Fourth Defendants as Security Parties, all witnessed by their own solicitors, Messrs Chee Siah Le Kee & Partners. Second, that the entire facility sums of RM3,350,000.00 (Term Loan) and RM2,500,000.00 (Overdraft) were drawn down and utilised by the First Defendant. Third, that all security documents — the Letters of Guarantee and the three Memoranda of Charge — were executed without complaint or qualification, and at the time without any allegation of irregularity. Fourth, that the Plaintiff is the registered chargee of the three pieces of land identified at paragraph [5] above. [36] The proposed defence, as developed in the affidavits and in "DET-1", reduces to three distinct propositions. They may be considered in turn.
i
(i) Non-receipt of the Notices of Recall and Termination dated 10 July 2025 [37] The Defendants assert that they did not receive the Notices of Recall and Termination of 10 July 2025. The same contractual mode of service governs those notices. For the reasons set out above in relation to the service of the Writ, the assertion is foreclosed by Clause 53.2 of the Facility Agreement. The notices were dispatched to the contractually stipulated addresses and are, by the parties' own agreement, deemed received. The point does not form the basis of an arguable defence.
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(ii) Prematurity — the requirement first to realise the security [38] The Defendants contend that the Plaintiff, being a registered chargee, must first proceed by way of foreclosure and apply the proceeds of the auction in reduction of the debt before suing the Borrower and the guarantors. They describe the contrary approach as a "double whammy". [39] That contention does not give rise to an arguable defence. It is well established that a creditor who holds both a personal covenant by the borrower (and by guarantors) and security over land is entitled to sue on the personal covenant and to pursue the security. He may do so concurrently. There is no rule of law requiring exhaustion of the security before action on the covenant, absent express contractual provision to that effect. No such provision in the Facility Agreement, the Letters of Guarantee or the Memoranda of Charge has been identified by the Defendants. [40] Indeed, the Defendants' own averments (Enc.16) in paragraphs 11(b)(iii) and 11(b)(iv) of the Affidavit in Reply to Encl. 6 acknowledge the Plaintiff's status as registered chargee with concomitant rights of enforcement. The legal premise of the prematurity argument is, accordingly, inconsistent with the Defendants' own pleaded position. [41] The argument is, in addition, conceptually misconceived. A guarantor's liability under a contract of guarantee is a primary contractual obligation owed to the creditor: it crystallises on default by the principal debtor. The fact that the creditor also holds security adds to, rather than subtracts from, the creditor's remedies. The proposition that a creditor must first realise security before suing on the guarantee finds no support either in the standard form of guarantee in use in this jurisdiction or in the authorities of the High Court, the Court of Appeal or the Federal Court of Malaysia. The "double whammy" characterisation is, with respect, no more than rhetoric; it does not engage with the legal foundation of the Plaintiff's right to sue. [42] The prematurity defence accordingly does not raise a triable issue.
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(iii) The quantum is "very high" and "wrong" [43] The remaining proposition in the draft defence is that the sums claimed are "very high" and "wrong" against the Defendants. That assertion is unsupported by any particularised challenge to the Plaintiff's statement of account. It is not coupled with any alternative computation, any identification of disputed entries, or any documentary material capable of casting doubt on the sums claimed. It amounts to a bare denial of indebtedness. [44] A bare denial does not give rise to a bona fide defence. A defendant who wishes to dispute quantum must do more than assert that the figure is high; the defendant must engage with the figure and identify the alleged error with sufficient particularity. None of that has been done here. [45] Drawing the threads together: the Defendants accept that the facilities were granted, that the moneys were drawn down and utilised, that the security documents were duly executed, and that the Plaintiff holds the registered charges. The proposed defence does not engage with any of those matters. It rests on:
a
(a) a factual contention foreclosed by the deeming provision;
b
(b) a legal contention without foundation; and
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(c) a bare denial of quantum. None of those, individually or in combination, raises a triable issue. [46] In Logan Ravishankar v My IT Asia Sdn Bhd [2015] MLJU 905 (High Court), on which the Defendants rely, the Court was satisfied that the draft defence was "prima facie plausible" and that there were "traces of sham or frivolity" neither in it nor in its presentation. That was a fact-sensitive determination on a particular pleading. Applying the same approach to the substance of the proposed defence in the present case, this Court reaches the opposite conclusion: the substance does not survive scrutiny. [47] As to Beauford Baru Sdn Bhd v Gopala Krishnan Vk Gopalan [2002] 6 MLJ 134 (High Court), also relied upon, the Court accepts the proposition there expressed that the administration of justice should not be derailed by purely technical objections. That principle, however, cuts both ways. A plaintiff with a clear claim founded on documents executed by the defendants themselves should not be put to the cost and delay of a trial where no triable issue is disclosed. The principle in Beauford Baru is not a passport for a defendant who has slept on his rights to demand a trial without first showing a defence. D. Prejudice to the Plaintiff [48] The fourth matter under Abdul Rahim Ponniah is prejudice to the Plaintiff. The Plaintiff has been kept out of its money for a substantial period. Interest continues to accrue. The Plaintiff has acted with reasonable expedition: Notices of Recall and Termination on 10 July 2025; Writ on 8 August 2025; Encl. 6 on 19 September 2025. To require the Plaintiff now to litigate a defence which discloses no triable issue would be to compound the delay caused by the Defendants' own default. Some prejudice is plainly demonstrated. E. Disposition of the two applications [49] On the foregoing analysis, the four matters identified in Abdul Rahim Ponniah do not favour the grant of leave under Encl. 13. The delay is not adequately explained; the explanation tendered is foreclosed by the parties' own agreement; the proposed defence does not raise a bona fide or arguable issue; and prejudice to the Plaintiff has been demonstrated. [50] It follows that Encl. 13 falls to be dismissed. [51] As to Encl. 6, the requirements of Order 83 rule 4(1) are satisfied. Service was good. The time for appearance has expired without appearance. The Plaintiff has placed the contractual documents and statements of account before the Court on affidavit (Encl. 7). Leave to enter judgment in default of appearance is therefore properly to be granted.
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CONCLUSION [52] The pivotal feature of these applications is that the Defendants are bound by the very contractual provision they themselves executed in 2015. Clause 53.2 was the parties' agreed mode of service. Once the Plaintiff posted the Writ in conformity with that clause, service was effected. The Defendants cannot escape the consequence of their own contract by a bare assertion of non-receipt. Once that point is decided against the Defendants, the foundation of Encl. falls away: there is no meritorious explanation for the delay, and there is no arguable defence on the substantive merits.
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ORDERS OF THE COURT [53] The Court accordingly makes the following orders:
i
(i) Encl.13 (the Defendants' application under Order 12 of the Rules of Court 2012 for leave to enter appearance and to file a defence out of time) is dismissed.
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(ii) Encl. 6 (the Plaintiff's application under Order 83 rule 4(1) of the Rules of Court 2012 for leave to enter judgment in default of appearance) is allowed.
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(iii) Pursuant to that leave, judgment is entered against the First, Second, Third and Fourth Defendants jointly and severally:
a
(a) for the sum of RM3,477,582.32 as at 23 July 2025 under Term Loan Account No. 2-1186921-05 (Note No. 00010), with further interest on that sum at 3.50% per annum above the Plaintiff's Base Lending Rate (the BLR being 6.47% per annum as at 23 July 2025, subject to variation from time to time), calculated on a daily basis, together with additional interest on overdue monthly instalments at 1.00% per annum, from 24 July 2025 until full payment or settlement; and
b
(b) for the sum of RM2,547,103.50 as at 23 July 2025 under Overdraft Account No. 3192837809, with further interest on that sum at 3.50% per annum above the Plaintiff's Base Lending Rate (the BLR being 6.47% per annum as at 23 July 2025, subject to variation from time to time), calculated on a daily basis, together with additional interest on the excess over the operative credit limit of RM2,500,000.00 at 1.00% per annum, from 24 July 2025 until full payment or settlement.
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(iv) The Defendants shall pay the costs of and incidental to Encl. 6 and Encl.13 to the Plaintiff in the sum of RM 15,000 with allocatur fee.
v
(v) Liberty to apply. Dated 19th May 2026 (MELAKA) Lawyer For Plaintiff : En. Chew Wee Kian bersama Cik Melissa Ong Bee Ying Tetuan H.S. Chew & Co. Peguambela dan Peguamcara, 543-A, (1ST Floor), Taman Melaka Raya, 75000 Melaka. Lawyer For Defendent : En. Reuben Ong Shen Myn Tetuan Asadullah Sharveen & Co. Peguambela dan Peguamcara No. 662-A, Jalan Melaka Raya 8, Taman Melaka Raya, 75000 Melaka.
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