Syed Mohamed Mushtaq Mohamed v Affin Bank Berhad (BA-24NCvC-2788-12/2025)

This is a judgment concerning the Plaintiff’s application to set aside an Order for Sale dated 26 September 2019 (“Order for Sale”). S/N xK3cIj4bskSCwifKa0K0gA

The Order for Sale was made by the Learned Senior Assistant Registrar (“SAR”) in the Shah Alam High Court Originating Summons No.: BA-24FC-716-06/2019 (“Foreclosure Proceedings”).

The Plaintiff filed this Originating Summons (“OS”) in his capacity as the administrator of the estate of his late wife, Gauri a/p Alumalai (“Gauri”).

Gauri intended to purchase a two-storey bungalow situated at No.36, Jalan PP 50A, Taman Pinggiran Putra (Le Putra Avenue), Bandar Putra Permai, 43300, Seri Kembangan, Selangor Darul Ehsan (“Property”).

The Property is also registered as Pajakan Negeri 110102 Lot 95377, Mukim Petaling, Negeri Selangor Darul Ehsan.

To purchase the Property, Gauri obtained a financing facility from the Defendant in the amount of RM1,576,365.00 (“Financing Facility”). S/N xK3cIj4bskSCwifKa0K0gA

The Financing Facility comprised a housing loan of RM1,148,000.00, a premium of RM76,365.00 for Mortgage Reducing Term Assurance (“MRTA”), and a personal loan of

To secure repayment of the Financing Facility:

Gauri created a first-party first legal charge over the Property in favour of the Defendant under the National Land Code (currently the National Land Code (Revised 2020), Act 828) (“Charge”); and

Gauri also secured a 20-year decreasing MRTA cover of up to RM1,148,000.00 from AXA Affin Life Insurance Berhad to repay the housing loan in the event of her death.

The Defendant performed its obligations and disbursed the Financing Facility.

Gauri breached the Financing Facility.

As a result of Gauri’s breach, the Defendant exercised its rights under the Charge and initiated the Foreclosure Proceedings. S/N xK3cIj4bskSCwifKa0K0gA

On 26 September 2019, the Learned SAR made the following Order for Sale. S/N xK3cIj4bskSCwifKa0K0gA S/N xK3cIj4bskSCwifKa0K0gA

On 1 June 2023, Gauri passed away.

On 21 February 2024, the Plaintiff was appointed as the administrator of Gauri’s estate.

On 9 December 2025, the Plaintiff filed this OS.

The Learned Counsels for both parties agree that there is only one issue for determination, namely, whether the Learned SAR had the jurisdiction and power to make the Order for Sale. S/N xK3cIj4bskSCwifKa0K0gA

The Learned Counsel for the Plaintiff relied on Practice Note No. 2 of 1987 and argued the Senior Assistant Registrar did not have jurisdiction or power to make an Order for Sale in foreclosure proceedings.

The Learned Counsel for the Plaintiff also argued under Practice Note No. 2 of 1987, only the High Court Judges had the jurisdiction and power to make an Order for Sale in foreclosure proceedings. S/N xK3cIj4bskSCwifKa0K0gA

I am unable to agree with the arguments advanced by the Learned Counsel for the Plaintiff because another directive known as ‘Arahan Bagi Pendengaran Kes-Kes Saman Halang Tebus Dan Petisyen Perceraian Yang Tidak Melibatkan Pertikaian Serta Petisyen Short Call’ was issued in 2017 by the then YAA Chief Judge of Malaya (“2017 CJM Directive”). S/N xK3cIj4bskSCwifKa0K0gA

The 2017 CJM Directive was made pursuant to Order 92 rule 3B(2) of the Rules of Courts 2012.

Under the 2017 CJM Directive, the Deputy Registrars and Senior Assistant Registrars have the jurisdiction and power to make an order for sale in uncontested foreclosure cases.

The 2017 CJM Directive was also communicated to members of the Malaysian Bar via Circular No. 094/2017. S/N xK3cIj4bskSCwifKa0K0gA

In the instant case, it is important to note that Gauri did not oppose the Foreclosure Proceedings. S/N xK3cIj4bskSCwifKa0K0gA

Since Gauri did not file any affidavit in opposition, the Defendant’s originating summons to obtain the Order for Sale was treated as an uncontested foreclosure case.

As an uncontested foreclosure case, the Learned SAR had correctly exercised her jurisdiction and power under the 2017 CJM Directive to make the Order for Sale.

For the reasons above, it is my finding that the Order for Sale is not a nullity.

Regarding the calculation of the amount due under the Order for Sale, the Plaintiff cannot now challenge it in this OS, since Gauri did not file an appeal to the Court of Appeal against the Order for Sale before she passed away.

By not appealing to the Court of Appeal and not filing an application to set aside the Order for Sale in the Foreclosure Proceedings before she passed away, Gauri had accepted the Order for Sale as correct.

The Plaintiff, in his capacity as the administrator of Gauri’s estate, is now estopped from taking a different position than the one taken by Gauri. S/N xK3cIj4bskSCwifKa0K0gA

Given that the Order for Sale is not a nullity, the Court has already become functus officio and all issues raised in the foreclosure proceeding cannot now be re-litigated based on the doctrine of res judicata (Serac Asia Sdn Bhd v Sepakat Brokers Sdn Bhd [2013] 5 MLRA 175).

For the foregoing reasons, Enclosure 1 is dismissed with costs of RM10,000.00, subject to allocatur fees. Dated this 5th day of June 2026 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR S/N xK3cIj4bskSCwifKa0K0gA Counsel for the Plaintiff : Madam Sasha Lyna binti Abdul Latif (Mr. Abdul Shukor bin Tokachil & Madam Nursakinah binti Norhayatdin) (Messrs Sasha Lyna) Counsel for the Respondent : Mr. Ashmadi bin Othman (Madam Nur Athirah Ahmad) (Messrs Zulpadli & Edham) S/N xK3cIj4bskSCwifKa0K0gA