|
NORESAH LANI V.
RHB BANK BERHAD
HIGH COURT [KUALA LUMPUR]
ABDUL WAHAB SAID AHMAD, J
CIVIL SUIT NO: D8-22-1370-2005
19 APRIL 2006
Di Hadapan Y.A. Dato' Abdul Wahab bin Said Ahmad
Hakim Mahkamah Tinggi Bahagian Dagang 8, Kuala Lumpur
GROUNDS OF JUDGMENT IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
CIVIL SUIT NO: D8-22-1370-2005
BETWEEN
NORESAH BINTI LANI - PLAINTIFF
(I.C. NO: 4871809)
AND
RHB BANK BERHAD - DEFENDANTS
(Company No: 6171-M)
GROUNDS OF JUDGMENT
The Plaintiff filed an application in Enclosure 4 for an injunction to
restrain the Defendant from selling the Plaintiff's property known as Unit
No. 211, Storey 3 of Building No. W, Road SS15/8, Phase SJ85, My Place, with
an address at 211W, Jalan SS15/8, 47500 Subang Jaya, by way of public
auction, foreclosure or in whatever manner. The Plaintiff also prays for an
order that the Defendant within 14 days from the date of the Order supply
the Plaintiff with monthly statements of the loan under the Agreement
between the Plaintiff and Kwong Yik Bank Berhad dated 11 May [1991] from the
date of commencement of the loan until the date of the order. Further, the
Plaintiff prays for an injunction to restrain the Defendant from proceeding
with the case in Kuala Lumpur Sessions Court No: 8-52-15686-2005 until the
disposal of this case.
The Plaintiff had entered into a Loan Agreement cum Assignment with Kwong
Yik Finance Bhd ("Kwong Yik") on 11 May [1991] for a housing loan of
RM107,000.00. Subsequently all of Kwong Yik's rights had been vested in the
Defendant. In view of the vesting, the Plaintiff had on 11 February 2003
made inquiries to the Defendant about the status of the loan. The Defendant
had required the Plaintiff to forward a copy of the Letter of Offer from
Kwong Yik. The Defendant did supply the Letter of Offer on 18 February 2003.
On 19 February the Defendant wrote to the Plaintiff saying that they are
looking into the Plaintiff's inquiry.
On 22 February 2003 the Defendant wrote to the Plaintiff claiming for the
amount of RM2,777.21, purportedly arrears as at 25 November 2002. The
Plaintiff promptly replied saying that there are no arrears outstanding and
requested that the Defendant supply her with Statement of Accounts from the
commencement of the loan. The Plaintiff had by her letter dated 29 April
2003 requested to see the Defendant's officer about the account. The
Defendant did by its letter dated 29 April 2003 request that the Plaintiff
see its officer. During the meeting, the officer said that the Bank will
give a clarification as to the Plaintiff's account status.
The Defendant did not send any clarification, so the Plaintiff sent a
reminder dated 29 September 2003. Even though the Defendant has failed to
send any clarification or send any Statement of Accounts, the Defendant sent
a Notice of Demand dated 16 December 2003 for RM5,811.26 The Plaintiff
denied the debt by letter dated 26 December 2003. The Plaintiff sent another
letter dated 25 February 2004 for a clarification. The Defendant did not
reply but reciprocated by sending a Notice of Recall dated 25 November 2004
claiming for the entire loan amount, including interest and late payment
charges that came up to RM 124,050.64.
The Plaintiff by her solicitors' letter dated 22 December 2004 disputed that
there are any arrears outstanding that would entitle the Defendant to
terminate the Agreement and asked the Defendant to withdraw the Notice of
Recall. At the same time when the Plaintiff wanted to make payment at the
Defendant's branch in One Utama, she was prevented from doing so and was
directed to the branch that handled her loan. The officer there asked the
Plaintiff to restructure the loan but the Plaintiff refused. On 8 July 2005,
the Defendant sent a letter asking the Plaintiff to deliver vacant
possession of her property and that the Defendant is going to auction it
off. She was also informed that the strata title had been issued and was
told to sign it; otherwise the Defendant will sign it and proceed with the
sale. At the same time the Defendant filed an action in the K L Sessions
Court for the loan amount.
The Plaintiff said that the Defendant should not be allowed to proceed with
the sale because the redemption statement would not be correct, in view of
the fact that it had failed to supply the Plaintiff with the Statement of
Accounts when requested.
The Defendant in its Affidavit-in-Reply stated that the rights of Kwong Yik
Bank Berhad were vested to RHB Finance Berhad (previously known as DCB
Finance Berhad) through an Order of the High Court of Kuala Lumpur in Ex-Parte
Originating Summons No: Dl-24-155-97 dated 23 June 1997. The rights of RHB
Finance Berhad was then vested to the Defendant through Ex-Parte Originating
Summons No: D2-24-279-98. The Defendant contended that the Plaintiff had
admitted this since she had continued paying to the Defendant.
The Defendant stated that at all material times the Plaintiff had defaulted
in payment but had failed or refused to pay the amount owing. In view of
this, the Defendant contended that it is not obliged to supply the Plaintiff
with all the Statement of Accounts when it is the Plaintiff's duty to ensure
that she makes the repayment according to the current rate of interest
monthly.
The Defendant contended that if the Plaintiff had been paying regularly it
would have sent the Statement of Accounts every month and the amount accrued
would have been clearly stated. It was said to be an implied term that if
the Plaintiff wanted to raise any discrepancies, she should have contacted
the Defendant within 14 days. The Plaintiff claims that it had informed the
Plaintiff of any amount owing and any variation in interest by letter
("CCY-2").
Referring to the said exhibit the Defendant said that the Plaintiff had been
informed a total of four times about the variation in interest rates. By a
letter dated 4 September [1991], the Plaintiff was informed of an increase
in interest rate from 8.25% to 10.25%. By a letter dated 8 January 1992 from
10.25% to 10.50%. By a letter dated 16 June 1992 from 10.50% to 11.0%.
Lastly by a letter dated 4 August 1992 the Plaintiff was informed that
because the BLR was increased to 10.75% the Plaintiff's interest was raised
to 11.25%. The Plaintiff said that the BLR is based on the BLR fixed by Bank
Negara and is public knowledge.
After the Plaintiff was informed of the variation in interest rates, the
Defendant claimed that the Plaintiff had not been regular in repaying. The
Defendant therefore wrote a letter to the Plaintiff dated 12 Novemberl992
and 25 May 1993 informing the Plaintiff that there was a balance of
RM1,799.43 unpaid. The Defendant also sent a letter dated 28 June 1993
through its solicitors claiming for the amount of RM3,313.00 that was due
from the Plaintiff. When the Plaintiff failed to pay the amount due, the
Defendant instructed its solicitors to proceed with foreclosure proceedings.
Charges incurred from the proceedings were to be borne by the Plaintiff as
provided in the Loan Agreement cum Assignment.
The Defendant had on 14 January 1995 sent a letter through its solicitors
made a demand on the Plaintiff, followed by a letter dated 8 February 1995.
Subsequent to that the Plaintiff through a letter dated 13 February 1995
made a proposal for repayment and the Defendant accepted the proposal by its
letter dated 22 February 1995. The 1st payment under this new proposal was
by a letter dated 13 February 1995. The correspondence is marked as "CCY-6".
In view of this the Public Auction was called off by the Defendant.
The Plaintiff was then again found to have defaulted in repayment and the
Defendant had sent letters dated 1 June 1995, 25 August 1995, 16 August 1993
and 1 September 1995 to the Plaintiff about this.
Through its letter dated 15 December 1995 the Defendant raised the
instalment that was supposed to be paid by the Plaintiff since she had not
been making the repayment as scheduled regularly. The Defendant claimed that
at all material times the Defendant had been complying with the Bank Negara
rates. The Defendant demonstrated this by exhibiting a letter dated 28
August 1995 ("CCY) that there was a reduction in interest rate from 11.25%
to 1.25% with BLR (i.e. 8.95% at that time) at monthly rests.
As for the Plaintiff's allegation that she was turned away when she wanted
to make repayment, the Defendant replied that as soon as a loan not repaid
and a "Notice of Recall" of the entire loan is sent, as the Defendant did by
its solicitor's letter as in "NL-9", the Defendant is not obliged to accept
any repayment save for the entire amount that is outstanding.
The Defendant reiterated that it is not reasonable to supply the Plaintiff
with the Statement of Account from the time that the Plaintiff had taken the
loan since the Plaintiff was well aware that she still have to pay even if
there is an increase in interest rate. If the repayment is not made
according to schedule and there are arrears, late payment charges will be
imposed and there will also be an increase in interest for the entire loan
amount. The Defendant stresses that a Statement of Accounts signed by two of
its officers is conclusive agreed by the Plaintiff and cannot be questioned.
The Defendant stated that it had incurred expenses in filing the Suit in the
Sessions Court. The Summons was struck out by the Sessions Court Judge when
the learned Judge refused to allow a postponement pending the disposal of
the matter in this Court.
On 21 September 2005, the day that was fixed for the hearing the parties
came before me, Mr. Annon Xavier, learned counsel for the Defendant informed
me that he had advised his client to put off the Public Auction. Ms.
Jennifer Chandran, learned counsel for the Plaintiff did not agree to a
postponement and was desirous that the Court grant her application in End.
4. Upon going through the Plaintiff's application and the Affidavits filed
and hearing learned counsels on both sides, I granted an order in terms of
the Plaintiff's application in Enclosure 4.
I did so because I felt that this is not a situation where the Plaintiff had
been in total neglect, default or failure to pay the instalments. The
Defendant in its own Affidavit had admitted that the Plaintiff had been
paying. She had paid before and after the rights in Kwong Yik Bank Berhad
was vested in the Defendant. The payment had not been so regular when at one
stage there was a variation in interest rate and at a later stage the
instalment was increased. I believe there is a serious question to be tried
in that the Defendant had insisted time and again that it was not obliged to
supply the Plaintiff with the Statement of Accounts that she had requested.
Instead the Defendant is saying that it is the Plaintiff who should have
taken the trouble to keep abreast of the appreciation and depreciation of
interest rates. At one stage the Defendant had stated that it had done what
is to be expected of it, in that the Statement of Accounts had been
regularly sent and it is the Plaintiff who should take action to point out
any disparities to the Defendant within 14 days from the receipt of the
Statement of Accounts.
I also find that the balance of convenience lies in favour of granting this
injunction since the loss to the Plaintiff's property if it were to be
auctioned off could not be compensated by damages. On the other side of the
divide, I think that the Plaintiff is not being unreasonable in her claim
for the Defendant to supply her with the Statement of Accounts from the time
that the loan was granted by Kwong Yik Bank Berhad. The Statement of
Accounts if given would be a running account and it would show the status of
the loan from its inception right until the current stage. The fact that the
request is not unreasonable and not impossible to meet can be seen from the
Defendant's own words in its Affidavit-in-Reply. It had stated that
preparation for the Case took time because it had to retrieve all the files
concerning the Plaintiff's loan right from the time that she took it from
Kwong Yik Bank Berhad. If the Defendant can do that, I do not see why they
cannot do the same in meeting the Plaintiff's request for the Statement of
Accounts. I agree with the Plaintiff that in the absence of the detailed
Statement of Accounts dating back to the time before the vesting took place,
the auction, if it had been allowed to proceed, would not be right in law
since the redemption statement would not be accurate.
For the above reasons, I decided Enclosure 4 in favour of the Plaintiff with
costs.
Dated This 19th Day of April 2006 -signed-
DATO' ABDUL WAHAB BIN SAID AHMAD
JUDGE
HIGH COURT OF MALAYA KUALA LUMPUR
Counsel For Plaintiff:
Ms Jennifer Chandran of Messrs Vaasan Chan & Chandran Advocates & Solicitors
Counsel For Defendant:
Mr. Annon Xavier with Ms S K Kee of Messrs Lee Swee Seng & Co Advocates &
Solicitors
|
