Bagi negeri di mana Ahad merupakan Hari Rehat Minguan, dengan pelaksanaan Lima Hari Bekerja Seminggu maka Hari Rehat Mingguan bagi negeri berkenaan adalah hari Sabtu dan hari Ahad. Manakala bagi negeri di mana hari Jumaat merupakan Hari Rehat Mingguan, dengan pelaksanaan Lima Hari Bekerja Seminggu, Hari Rehat Mingguan bagi negeri berkenaan adalah pada hari Jumaat dan Sabtu. [15] Consequently, for the purposes of reckoning the four clear days under O 83 r 2(2), both Saturdays and Sundays are excluded. With this mandatory exclusion, there was clearly insufficient four clear days intervening between the posting of the Originating Summons and the supporting affidavit on 25.8.2017 and, the first day of hearing on 5.9.2017. The order of sale ordered on the first day of hearing on 5.9.2017 was thus, irregular and must be set aside ex debitio justitiae. [16] On this ground alone, the appeal must be allowed. The High Court decision of Aje Best-On Sdn Bhd v YB Ahmad Omar & Anor [2000] 3 CLJ 515 which was cited in support is of no assistance as it was decided prior to the implementation of Pekeliling Perkhidmatan Bilangan 13 Tahun 2005. [17] As for the second ground that was relied on to show the presence of contrary factors for which the order of sale ought not to have been ordered, we also agree with the submissions of the defendant, that the Originating Summons was initiated outside the limitation period that is prescribed under section 21 of the Limitation Act 1953. The defendant contended that the 12 year period under section 21 runs from the date of default in servicing the 10 loan, and not from the date of the issue of the Form 16 D notice under the National Land Code 1965. [18] In this regard, we rely on several recent decisions of this Court; namely Sivadevi a/p Sivalingam v CIMB Bank Berhad [2018] 1 LNS 511; Lim Ban Hooi & Anor v Malayan Banking Berhad [2018] 6 CLJ 545; Wan Zubaidah Wan Mahmood & Anor v CIMB Berhad [2018] 1 LNS 768; and Dato Haji Muhammad Hamzah v RHB Bank Berhad [2018] MLRAU 1. These decisions have departed from the earlier decisions of Peh Lai Huat v MBF Finance Bhd [2011] 3 MLJ 470 and Jigarlal K Doshi @ Jigarlal a/l Kantilal v Resolution Alliance Sdn Bhd & Another Appeal [2013] 3 MLJ 61. [19] In Sivadevi a/p Sivalingam, the Court of Appeal opined as follows, the views of which we adopt and apply in this appeal: “[64] The provision granting the right to sell charged land is in section 254 of the National Land Code, facilitated by the procedural rules in Order 83 of the Rules of Court 2012. The 12-year period commences a month after the breach or after the chargor has been deprived of the right to receive the money accruing under the charge. This period does not alter the underlying contractual relationship between the parties. The in rem right over the subject land is conferred by reason of the contractual agreement between the parties and that right is fortified in law in that it is recognized as a valid registrable encumbrance over the subject land. Without the underlying contractual relationship, and absent of any breach, the chargee not only cannot but has no right to approach the Court under the terms of the National Land Code 1965 and Order 83 of the Rules of Court 2012 for an exercise of the statutory right of sale. The right to pursue this statutory remedy is triggered by an event of breach or default in the underlying contractual agreement and in the terms 11 of the charge - see Federal Court decision in S&M Jewellery Trading Sdn Bhd v Fui Lian-Kwong Hing Sdn Bhd [2015] 5 MLJ 717. [65] If the time period of 12 years runs only from when the chargee decides to issue the Form 16D notice and then only after the failure to remedy the default, as is suggested in the case of Peh Lai Huat and Jigarlal, the time requirements of “at least one month or such other alternative period as may be specified in the charge” mentioned in section 253, would have been rendered meaningless and of no effect. If the time period of 12 years does not run from when the breach of the agreement took place whence the right to receive money accrued has been disaffected, a chargee may well decide not to do anything for the next 100 years, and still be in time to enforce the ad rem right of order of sale. [66] The laws of limitation are intended to protect the rights of all parties concerned. These laws lend certainty and confidence to the enforcement and safeguarding of rights and remedies and recourse to the Courts, preventing abuse through the principle of laches. This was discussed in the Supreme Court decision in Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409: “The doctrine of limitation is said to be based on two broad considerations. Firstly, there is a presumption that a right not exercised for a long time is non-existent. The other consideration is that it is necessary that matters of right in general should not be left too long in a state of uncertainty or doubt or suspense.” [67] The Supreme Court further opined that the laws on limitation are “promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly, to have a definite end to litigation. This is in accord with the maxim interest reipublicae ut sit finis litum that in the interest of the state there must be an end to litigation. The rationale of the limitation law should be appreciated and enforced by the Courts.” 12 … [76] Clearly, the statutory provisions have to create, provide or define some right in order to be considered substantive law. It is our respectful view that the terms of section 256 do not meet that criterion. In the first place, Chapter 3 of the National Land Code 1965 itself describes the provisions in this Chapter as containing the provisions on the remedy of a sale in respect of charges. And, section 253 fortifies that intent when it states that the “Purpose and scope of this Chapter” is “to have effect for the purpose of enabling any chargee to obtain the sale of the land or lease to which this charge relates in the event of a breach by the chargor of any of the agreements on his part expressed or implied therein.” [77] Sections 254 to 256 provide for the procedure, method, mechanism, manner or means of enforcing the right for an order of sale. However, the substantive right of the chargee to approach the Court for the remedy of an order for sale of the charged land is still dependent on there being a breach of the express or implied agreements. The express agreements are to be found in the charge documents, while the implied agreements are as provided under section 249 of the National Land Code. As expounded by the Federal Court in S&M Jewellery Trading Sdn Bhd v Fui Lian-Kwong Hing Sdn Bhd [supra], the right to pursue the statutory remedy of sale is triggered by the event of breach or default in the underlying contractual agreement and in the terms of the charge. [78] Since section 253 clearly refers to a breach which already exists, and that it is this breach which triggers the right of action or cause of action in favour of the chargee bank to enforce the charge, activating the mechanism under the National Land Code cannot mean that the breach which allowed the chargee bank to invoke the mechanism in the first place is avoided. Section 256 merely affords the chargor the opportunity to remedy the breach before the application for an order of judicial sale may be sought. Once that breach has been remedied, the breach or default 13 ceases and the chargee bank may no longer approach the Court for an order of sale. As mentioned earlier, the Federal Court had decided in Jacob that the Form 16D Notice is to give the charger sufficient notice before the chargee bank can go to Court for an order of sale. [79] We find further support for this in the view of learned author Judith Sihombing in National Land Code: A Commentary (Second Edition) at page 566: “The power of sale can be exercised on the breach of any covenant, not only on the breach of the covenant to pay. Thus, breach, of any agreement implied into the charge under sections 249 to 251 or any express agreements inserted by the parties, will give rise to the right to seek exercise of the power of sale.” [80] In our view, the fact that section 256(2) expressly provides that the application for sale shall be dealt with in accordance with the provisions of any law relating to civil procedure for the sale of land which is for the time being in force, and Order 83 is that specific procedural law for the purpose of charges, foreclosures and for sale of land, does not alter the status of section 256 as procedural law in effect. This provision merely provides for the manner and the authority which has been vested with the power to make that order for sale. [81] We are convinced that the appeal is therefore with merit and the appeal is consequently allowed. The foreclosure action is clearly time-barred in which case, the appellant has shown that there is cause to the contrary as to why the order for sale is bad in law and cannot be ordered. The order of the High Court is hereby set aside. 14 [20] We further cannot agree with the contention of the plaintiff that the limitation period of 12 years only runs from the date of default when the Form 16 D notice is issued, which is 12.8.2015 by reason of the plaintiff’s own actions. [21] The evidence reveal that the principal sum borrowed was a sum of RM192,000.00. Vide Form 16D, the plaintiff now claims a sum of RM645,647.00 as at 9.6.2015. That sum patently includes interest that runs from either 1987 or 1990, as can be seen from the Statement of Account shown by the appellant; and is also obviously time-barred under section 21(5) of the Limitation Act 1953. [22] Vide Originating Summons No. 31-191-1987, the plaintiff initiated foreclosure proceedings against the same property for the same debt. An order for sale was granted by the High Court sitting at Penang and the auction was scheduled for 5.3.2003. This is evident from paragraph 22 of the affidavit in reply filed by the plaintiff, and the order of the Court dated 17.12.2002. [23] We understand that the public auction did not proceed due to some partial payment of RM10,000.00 by the defendant. That was sometime in