Vimala Sangari A/P R. Nathan ... Appellant v Loh Chen Yook ... Respondent (N-02(NCVC)(A)-215-01/2017)

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1 THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. N-02(NCVC)(A)-215-01/2017 BETWEEN VIMALA SANGARI A/P R. NATHAN ... APPELLANT [NRIC NO. 720423-01-5286] AND LOH CHEN YOOK ... RESPONDENT [ NRIC NO. 541215-10-6147] [Dalam Mahkamah Tinggi Malaya di Seremban] Dalam Negeri Sembilan Darul Khusus, Malaysia Saman Pemula No. 24NCVC-289-10/2016 Dalam Perkara Seksyen 323, 327, 329 dan 417 Kanun Tanah Negara 1965 (Akta 56); Dan Dalam Perkara Aturan 7 dan Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012; Dan Dalam Perkara Kaveat Persendirian nombor perserahan 11653/2011 bertarikh 24 November 2011 atas tanah di bawah Hakmilik Geran PN 11243, Lot 6128, Mukim Si Rusa, Daerah Port Dickson, Negeri Sembilan Darul Khusus. 2 ANTARA VIMALA SANGARI A/P R. NATHAN … PLAINTIF [NO. K/P: 720423-01-5286] DAN LOH CHEN YOOK … DEFENDAN [NO. K/P: 541215-10-6147] Coram: Hamid Sultan bin Abu Backer, JCA Abang Iskandar bin Abang Hashim, JCA Hasnah binti Dato’ Mohammed Hashim, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] The appellant/purchaser of a property under the judicial sale pursuant to the National Land Code 1965 (NLC) appeals against the decision of the learned High Court judge who refused to allow a private caveat lodged by the respondent. [2] The respondent had purchased the said property under a sale and purchase agreement executed 6 years or more before the judicial sale. The respondent has also not paid the full purchase price. The said sale and purchase agreement was a conditional sale and purchase agreement where the state authority consent must be obtained. The said condition reads as follows: 3 “Tanah yang diberimilik ini tidak boleh dipindahmilik, dipajak, digadai melainkan dengan kebenaran bertulis daripada pihyak berkuasa Negeri”. [3] On the date of hearing of the appeal, the learned counsel for the respondent brought to the attention of the court that the appellant in his application for removal of the caveat did not produce the certificate of judicial sale. The learned counsel for the appellant conceded that the certificate of judicial sale was not disclosed and undertook to produce the same. The learned counsel agreed not to object on that issue if the certificate was produced. [4] After hearing the parties, we adjourned our decision to enable the appellant to produce the judicial certificate and also for the parties to submit further on the phrase ‘aggrieved party’ stated in section 327 of the NLC as the learned judge had specifically ruled that the appellant was not an aggrieved party under the said section to give her the locus to make the application which read as follows: “327. Removal of private caveats by the Court.

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(1) Any person or body aggrieved by the existence of a private caveat may at any time apply to the Court for an order for its removal, and the Court (acting, if the circumstances so require, ex parte) may make such order on the application as it may think just.” Jurisprudence related to ‘aggrieved person’ 4 [5] The dictionary meaning of ‘aggrieved person’ as a general rule appears to be multifold. In the context of specific legislation, courts have given a special meaning to the word ‘aggrieved person’ in the context of the particular legislation as a whole. One common threshold which appears to run through most of the judicial meaning of ‘aggrieved person’ is that the person must be directly affected in his subsisting or acquired right by the conduct of third person and the law protects the said subsisting or acquired right. It cannot relate to a future right or prospective right, etc. For example, (a) the dictionary meaning of the aggrieved persons reads as follows:

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(ii) Some of the legal meaning of an aggrieved person in relation to legislation or case laws reads as follows:

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(ii) The respondent has prior to the judicial sale had entered into a conditional sale and purchase agreement dated 22/11/2011 to purchase the said property for the sum of RM2,500,000.00 and had only paid a sum of RM500,000.00.

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(iii) The respondent had not paid the balance purchase price or discharge the legal charge of Alliance Bank, but had placed a caveat on or about 24/11/2011 to protect his interest on the said property. 7 [7] The Memorandum of Appeal inter alia reads as follows: “1. Pesuruhanjaya Kehakiman tersilap dari sisi undang-undang dan/atau fakta apabila memutuskan bahawa kaveat yang dimasukkan oleh Responden/Defendan ke atas tanah bawah Hakmilik Geran PN 11243, Lot 6128, Mukim Si Rusa, Daerah Port Dickson, Negeri Sembilan Darul Khusus (selepas ini dirujuk sebagai 'hartanah tersebut') harus dikekalkan.

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(ii) In Paya Terubong Estates Sdn Bhd v Pusaka Warisan Sdn Bhd [1998] 2 MLJ 463; Court of Appeal, per Gopal Sri Ram, JCA (later FCJ), at page 468:- ‘The importance of timeous institution and prosecution of proceedings in this area of the law is well brought out by the judgment of Sinnathuray J, in the Singapore High Court in Teo Ai Choo v Leong Sze Hian [1982] 2 MLJ 12.It is a brief judgment and merits reproduction here: The matter before me is a simple one. Mr KS Chung for the plaintiff has raised five serious points. I need only deal with the last one, the fifth point, that on the subject of delay.

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(iii) In Damai Jaya Realty Sdn Bhd v Pendaftar Hakmilik Tanah Selangor [2015] 2 MLJ 768, in dealing with issues related to judicial sale, observed: “[5] In the instant case, the certificate of sale and/or order for sale has not been set aside by the respondent and/or other relevant bodies. If the respondent and/or relevant authorities are aggrieved by the order of sale and/or certificate of sale, they have a duty and an obligation to make the necessary application to the court to set aside the order. However, what they cannot do is refuse to comply with an order of court. In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Federal Court observed: It is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an 11 order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside.” [9] On the facts of the case and based on the cases cited above, we take the view that the caveat ought to be removed by any person who will have locus to remove the caveat under section 327 of NLC. A number of persons may have locus to remove the caveat provided the person can demonstrate to the court that he is an aggrieved person in law. To be an aggrieved person in law, we take the view that the applicant must demonstrate that his subsisting interest or acquired interest, etc. has been violently affected by the presence of the sterile caveat and/or non-sustainable caveat under the law. Support for the proposition is found in a number of cases, to name a few are as follows:

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(ii) In Rohaya bt Ali Haidar v AmBank (M) Bhd (previously known as 'MBf Finance Bhd) [2016] 2 MLJ 819 where Prasad Abraham JCA (as His Lordship then was), following the principles enunciated in Gondola’s case had stated: ‘In our present case the earlier purchaser of the said land based on the letters of disclaimers issued by the respondent had their interest (if any) subject to the respective charges on the said lands. What the respondent should have done was to take immediate steps to redeem the land in question or part of it but had failed to do so. Therefore it follows that the interest of the purchasers would be subject to the registered charge and to the appellant who acquired the registered and indefeasible interest in the said land when they had paid.’

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(iii) In Wong Kok Leong & Anor v RHB Bank Berhad [2015] 1 MLJ 385, the Court of Appeal held on the facts of the case as follows: “(1) The respondent must comply with s 281 and crystalise his cause of action by filing a suit and obtain a judgment and if necessary proceed with foreclosure proceedings as set-out in s 281 of the NLC. If he fails to do so and/or if limitation has set in, s 331 will become applicable to provide relief on the facts of this case and s 328(1) of the NLC states 13 that a private caveat shall lapse at the expiry of six years from the time it was lodged (see para 7).

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(2) The appellants need not seek any declaration to get the lien holder's caveat removed and obtain the title to the relevant properties. The limitation issue will only apply to the respondent in respect of ss 281 and 331 of the NLC, as to the cause of action. The appellant was not pursuing a cause of action against the respondents (see para 11).

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(3) A caveat has a specific purpose and is not a cause of action but a quick relief to protect interest (capable of being protected under the NLC) in the land in the nature of a statutory injunction and it is never meant to assist the indolent as in the instant case (see para 13).” [10] We have read the appeal record and able submission of the parties. After giving much consideration to the submission of the learned counsel for the respondent, we take the view that:

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(ii) the learned judge erred in law in refusing or failing to remove the sterile caveat in limine on the application of the appellant; 14 [11] For reasons stated above, we allow the appeal with costs here and below, subject to the allocatur. The judgment of the High Court is set aside. The prayers in the application of the appellant are allowed. We hereby order so. Dated: 10 November 2017 sgd (DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. Manian Raju [with Ms Zatul Izra binti Zulkefelee] Messrs. Krishna Dallumah, Manian & Indran Advocates & Solicitors No. 62 & 63-1, Jalan S2 D36 Regency Avenue 2 Seremban 2 70300 Seremban N. Sembilan. [Ref: KMI/MR/096/16/L] 15 Counsel for Respondent : Mr. Balraj Singh Messrs. Nora Hayati Raj Advocates & Solicitors 57B, Jalan 5/58, Taman Gasing Indah 46000 Petaling Jaya Selangor Darul Ehsan. [Ref: NHR/LCY/1/2017/L]