MODE OF EXECUTION (FOR KOPERASI/ASSOCIATION)
ORDER 46 RULES OF COURT 2012
1. PUBLIC AUCTION
KOPERASI SERBAGUNA TAIPING BARAT BHD v LIM JOO THONG [1999] 6 MLJ 38
(2) The defendant Lim Joo Thong proceeded with first execution
proceedings on the said judgment dated 3 June 1994 but by an order
dated 5 December 1994 made by this court upon an application made by
the plaintiff the execution proceeding was stayed pending the plaintiff's
appeal against the said judgment dated 3 June 1994.
(3) On 26 June 1995 the Federal Court dismissed the plaintiff's application
to file the record of appeal out of time and also dismissed the appeal
against the said judgment dated 3 June 1994.
(4) The defendant Lim Joo Thong then completed the
first execution proceedings for part of the judgment sum and
proceeded with second execution proceedings for the balance.
The auction of the plaintiff's land was fixed on 18 December 1995
but on an application made by the plaintiff this court stayed the
auction pending the hearing of an alleged counterclaim by the
plaintiff against the defendant Lim Joo Thong on the ground that the said
counterclaim was not heard by the arbitrator under the said arbitration
award given to the defendant.
(5) The defendant Lim Joo Thong appealed to the Court of Appeal against
the stay order made by this court and on 27 March 1997 the appeal was
allowed with the consequence that the second execution
proceedings on the said judgment dated 3 June 1994 could continue.
ORDER 47 RULES OF COURT 2012
2. WRITS OF SEIZURE AND SALE
TAI CHOI YU v. KOPERASI LUTONG MIRI BERHAD [2015] 1 LNS 1266
Since there is a judgment and where it is intended to seize an immovable
property with the view to dispose of the same to satisfy the judgment
sum the proper procedure should have been made under O. 47 r. 6 and
r. 7 ROC. It is therefore my finding that O. 31 was not the correct procedure to
be adopted by the plaintiff where there was already a judgment entered.
ORDER 49 RULES OF COURT 2012
3. GARNISHEE PROCEEDINGS
JAYA HARTA REALTY SDN BHD v KOPERASI KEMAJUAN PEKERJA-PEKERJA LADANG
BHD [2000] 6 MLJ 493
The plaintiffs having knowledge of the purported sale of the land to
Sykt Skyline View also became aware of the fact that the garnishees had been
appointed by Sykt Skyline View as solicitors in the sale and purchase transaction.
As solicitors, they were also acting as stakeholders of the sale price. Thus, to
reap the fruits of its final judgment the plaintiffs took out garnishment
proceedings under O 49 of the Rules against the garnishees. The learned
SAR allowed the plaintiffs' application, resulting in the garnishees filing an
application (vide encl 27) to, inter alia, stay the execution proceedings of the
garnishment order dated 21 January 1997 and also to set aside the garnishment
order dated 21 January 1997. This application by the garnishee was dismissed by
the SAR after he heard submissions. The garnishees then appealed (vide encl 61)
to the judge in chambers against the SAR's order of dismissal. On 28 April
1999, the learned judge allowed the appeal.
4. PROCEEDING AGAINST GUARANTOR/ CHARGOR
Maybank Investment Bank Berhad & Ors v Million Westlink Sdn Bhd & Anor
[2015] MLJU 2252
the 2nd Defendant is liable to the Plaintiffs under the following provisions of
the Guarantee -
(i) according to clause 2.1(b), the 2nd Defendant is liable to the Plaintiffs
upon service of Messrs SLB’s Demand dated 24.2.2015. This is because
the Guarantee is an “on demand�? guarantee. I rely on the following 3
decisions of our apex courts which have decided that on the
construction of the guarantees in those cases, a demand against
the guarantors in question, constituted a condition precedent for
establishing liability against those guarantors -
(1) Salleh Abas LP’s judgment in the Supreme Court case of Mok Hin Wah
& Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610, at 610-611;
(2) the Supreme Court’s judgment given by Lee Hun Hoe CJ (Borneo)
in Orang Kaya Menteri Paduka Wan Ahmad Isa Shukri bin Wan Rashid v
Kwong Yik Bank Berhad[1989] 3 MLJ 155, at 156-157; and
(3) Muthiah, at p. 9; and
Bank Pertanian Malaysia Berhad v Koperasi Permodalan Melayu Negeri Johor
[2015] MLJU 532
No action was taken against the two chargors who had expressly
covenanted to repay the loan granted to the borrower (EFCM) to the
extent of RM25 million. One of the properties charged by one of the
chargors, was only sold by auction on 20 August 2008 (long after the
fixed deposit had been uplifted on 6 December 2007). The Bank
apparently had sued the borrower (EFCM) and the individual guarantors and
obtained judgment in default against them on 22 June 2007. However, no
execution proceedings whatsoever were taken against them to enforce the said
judgment in default.
