Ready Cash Sdn Bhd v 1. ) Noorhayati Binti Mustapha (BA-24FC-1088-11/2023)

Content

1 IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24FC-1088-11/2023 _________________________________________________________ Dalam perkara mengenai Seksyen 256 dan 257 Kanun Tanah Negara 1965 Dan Dalam perkara mengenai gadaian ke atas Tanah yang dipegang di bawah Hakmilik GERAN 206211, LOT 28386, Mukim Dengkil, Daerah Sepang, Negeri Selangor Darul Ehsan Dan Dalam perkara mengenai Aturan 83 Kaedah 1, 2 & 3 Kaedah-Kaedah Mahkamah 2012. BETWEEN READY CASH SDN BHD … PLAINTIFF [COMPANY NO.: 1393126-W]

Preamble

Pursuant to the Offer Letter dated 27 December 2022, the defendants obtained a loan from the plaintiff for RM450,000.00. Both parties had entered into a Moneylending Agreement (Secured Loan) dated 4 January 2023. [6] Based on loan documentation exhibited as R-1 of the Affidavit in Support, the defendants agreed to use the said property as security to repay the loan to the plaintiff. On 27 January 2023, the defendants signed the Charge document. As the plaintiff and the defendants agreed, the property was registered with the Charge on 29 August 2023 under No. Perserahan 77620/2023 to secure the repayment to the plaintiff under Section 242 of the National Land Code (NLC). [7] The defendants have breached the terms and conditions under the registered charge. The plaintiff’s solicitors, Messrs Palany, Fairus & Adib Chambers, issued the defendants a Notice of Demand dated 25 May 2023. [8] However, the defendants continued to fail to regularise the loan repayment to the plaintiff. As such, the plaintiff exercised its right under section 256 of the NLC to obtain an Order for Sale of the property. On 13 September 2023, the plaintiff issued a statutory notice per Form 16D of the NLC. The defendants gave no responses to the said notice. [9] The plaintiff applied to sell the land through public auction under section 257 of the NLC. [10] On 29 July 2024, the Senior Assistant Registrar of the High Court issued an Order for Sale through Public Auction under sections 256 and 257 of the NLC. On 16 December 2024, the plaintiff obtained an order under Execution No. BA-38-2514-08/2024 for a date and time fixed for sale by public auction on the e-auction website to sell the property, which was mortgaged to the plaintiff. [11] The defendants challenged the validity of the moneylending agreement and filed a suit in the Kuala Lumpur High Court under Suit No. WA-22NCVC-708-11/2024. C. THE DEFENDANT’S APPLICATION [12] The defendants filed Enclosure 30 to seek relief from this Court as follows – a) Pelaksanaan Perintah bertarikh 29.7.2024 digantung sementara perbicaraan dan keputusan kausa tindakan Defendan-defendan di Mahkamah Tinggi Kuala Lumpur di bawah Guaman No. WA-22NCVC-708-11/2024 diberikan; b) Lelongan Awam yang ditetapkan pada 12.2.2025 yang diperolehi melalui Perintah bertarikh 16.12.2024 di bawah pelaksanaan No. BA-38-2514-08/2024 digantung sementara sehingga perbicaraan dan keputusan kausa tindakan defendan-defendan di Mahkamah Tinggi Kuala Lumpur di bawah Guaman No. WA-22NCVC-708-11/2024; c) Kos dalam kausa; dan d) Apa-apa perintah lain yang Mahkamah fikirkan perlu dan wajar. D. SUBMISSION BY THE DEFENDANTS [13] The defendants have filed a lawsuit in the Kuala Lumpur High Court to challenge the validity of the loan agreement dated 4 January 2023 and to set aside the High Court order dated 29 July 2024. [14] The defendants asserted that the loan agreement violated section 16, section 17A(1) and section 21(1) of the Moneylending Act 1951; section 2(g) of the Contract Act 1950, section 193 of the Penal Code; and section 6 of the Oaths and Affirmation Act 1949. Therefore, the order based on this agreement cannot be enforced. [15] According to the defendants, there are special circumstances in this application based on the following reasons-i. If the public auction on 12.2.2025 is not suspended, the defendants’ claim in Suit WA-22NCC-708-11/2024 will be academic. ii. If the plaintiff auctions the property before the trial of Suit 708, it will prejudice the defendants because the property is one of the subject matters in Suit 708. iii. The plaintiff will be unjustly enriched from the sale of the property. iv. It is in the public policy that the status quo of the parties be maintained until the decision in Suit 708 is determined. E. LEGAL PRINCIPLE REGARDING STAY OF PROCEEDINGS [16] Order 45 Rules 11 Rules of Court 2012 provided as follows – Matters occurring after the judgment: stay of execution Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground or matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit. [17] The law regarding stays of proceeding is well established. In the case of Kosma Plan Oil Mill Sdn Bhd v Koperasi Serbausaha Makmur Sdn Bhd [2003] 1 MLRA 536, it was held that the applicant must demonstrate special circumstances, such as the appeal being rendered nugatory. In monetary judgments, the focus should be on the respondent's inability to restore the applicant to his original position if the applicant is successful in the appeal. [18] In Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 1 MLRA 214, the principles for granting a stay are outlined as follows: (1) Granting a stay pending appeal is an exercise of discretion;