XXXX v 1. ) XXXX (22NCC-444-11/2014)

PD MARINE SERVICES SDN BHD (Company No.: 197927-A)

HAJI YAACOB BIN HAJI HUSSIN (NRIC: 451001-05-5349 / Old NRIC: 0906134)

MOHD SALIHODDIN BIN HAJI HUSSIN (NRIC: 591226-05-5379 / Old NRIC: 5804897)

MOHD HELMY AZRAI BIN YAACOB (NRIC: 770531-05-5491 / Old NRIC: A3671111)

MOHD SHAHRANI BIN MOHAMAD TAIB (NRIC: 700129-08-5859 / Old NRIC: A1597987)

NORDIANA WAHIDA BINTI YAACOB (NRIC: 801001-05-5346) …DEFENDANTS 07/11/2023 15:23:24 22NCC-444-11/2014 Kand. 22 JUDGMENT (Enclosure 16) Introduction [1] This is an application under Enclosure 16 by the Plaintiff pursuant to Order 46 Rule 2(1)(a) and Rule 3 of the Rules of Court 2012 for leave to enforce the summary judgment of this Court that was granted on 13.4.2015 given that more than 6 years have lapsed since the date of the said judgment. [2] The application was dismissed on the ground that no reasons, let alone satisfactory reasons were given in the affidavit filed in support of the leave to explain the Plaintiff’s delay in the enforcement of the judgment within the 6 years for this Court to exercise its discretion. Brief Background [3] Based on the affidavit filed in support (Enclosure 17), the Plaintiff averred that the summary judgment was obtained on 13.4.2015 (“the Judgment”) arising from the breach of a Term Loan and Fixed Loan Facility granted to the 1st Defendant wherein the 2nd to 6th Defendants had stood as guarantors. The Judgment was: a) against the 1st, 2nd and 3rd Defendants jointly and severally for the sum of RM 596,559.56 as at 31.7.2014 with interest at the rate of 1.5% above the prime rate at 6.85% p.a. from 1.8.2014 to full realisation; b) against the 1st, 2nd, 4th and 5th Defendants jointly and severally for the sum of RM 3,532,335.77 as at 31.7.2014 with interest at the rate of 4.0 % p.a. from 1.8.2014 until full realisation; c) against the 1st, 2nd, 4th and 6th Defendants jointly and severally for the sum of RM 4,766,882.78 as at 31.7.2014 with interest at the rate of 4% p.a. from 1.8.2014 until full realisation. [4] As security for the Term Loan and Fixed Loan Facility, the 1st Defendant had charged the property held under No. Hakmilik 65881, Lot 1485, Mukim Si Rusa, Daerah Port Dickson, Negeri Sembilan (“the Property”) to the Plaintiff. [5] On 14.8.2019, the Plaintiff had obtained an order for the sale of the Property. The Court thereafter, on 28.4.2021, ordered for the Property to be sold by public auction on 7.7.2021. The Property was successfully sold by auction at RM 510,000.00 on 20.9.2021 and the Plaintiff received the full proceeds of sale on 21.12.2021. [6] Quite clearly, the proceeds of sale from the Property were wholly insufficient to meet and satisfy the entire sums ordered to be paid under the Judgment. [7] As at 18.8.2023, the outstanding sums under the Judgment was RM 6,434,697.57. [8] As more than 6 years have lapsed since the Judgment on 13.4.2015, the Plaintiff sought for leave to enforce on the Judgment. Court’s Deliberations [9] Apart from stating that the proceeds of sale from the Property were insufficient to meet the Judgment sums and the fact that the Plaintiff has the avenue to enforce the Judgment by filing a winding up petition against the 1st Defendant and commencing bankruptcy proceedings against the other Defendants, no satisfactory reasons have been proffered by the Plaintiff explaining the reasons for the delay in enforcing the Judgment as required under Order 46 Rule 3(2)(b) of the Rules of Court 2012. [10] The Plaintiff could have proceeded to enforce the Judgment against all and or any of the Defendants concurrently with the action taken to enforce on the charge over the Property during the entire period from 13.4.2015 to 13.4.2021 but did not do so. No reasons were given. [11] Even after the proceeds of sale were received sometime on 21.2.2021 and the Plaintiff realised the insufficiency of the amount, the Plaintiff did not take any steps to enforce on the Judgment before 13.4.2021, prior to the expiration of the 6 years. Again, no reasons were given. [12] The burden is on the Plaintiff to provide sufficient reasons and the cause for the delay [See: Bank Kerjasama Rakyat Malaysia Berhad v. East Curve Development Sdn Bhd [2019] AMEJ 1260]. The requirement to provide reasons for the delay is mandatory [See: CIMB Bank Bhd v. Teratai Sanjung (M) Sdn Bhd [2020] 1 MLJ 249]. [13] Regrettably, the Plaintiff has failed to discharge its burden and to provide the reasons for the delay. Thus, there are no materials of which this Court can rely upon to exercise its discretion to grant the leave as sought. Conclusion [14] For the reasons stated above, the Plaintiff’s application under Enclosure 16 is dismissed. Dated the 7th day of November 2023 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Hapizi bin Hashim for Plaintiff Messrs. Sidek teoh Wong & Dennis (Kuala Lumpur)

Bank Kerjasama Rakyat Malaysia Berhad v. East Curve

CIMB Bank Bhd v. Teratai Sanjung (M) Sdn Bhd [2020] 1 MLJ 249

Order 46 Rule 2(1)(a) and Rule 3; Order 46 Rule 3(2)(b) of the Rules of Court 2012