charge

Procedure for obtaining order for sale we have to refer on section 254 of National Land Code 1965. Form 16D need to specify the breach in question; requiring it to be remedied within one month of the date on which the notice is served or such alternative period as may be specified in the charge; and warning the chargor that if the notice is not complied with, he will take proceedings to obtain an order for sale. Not a judgment debt. Order for sale is not a judgment or decree. In case of Kandiah Peter v Public Bank Bhd, the court held that Order for sale does not constitute a judgement debt. It is an exercise of chargee’s statutory remedy. Before and After the National Land Code (Amendment) Act 2016 (Act A1516)Notice of Demand, powers and requirements for issuing of notices are provided under section 254 & 255 of National Land Code 1965.Before the National Land Code (Amendment) Act 2016 (Act A1516), Form 16D section 254(1)notice of default , to claim for principal sum and interest; where there is a breach of agreement between a creditor and a debtor for at least 1 month or a specified period under the charge.Duration of notice of demand, the requirement is at least one month notice under section 254 which possibly to give chargor the opportunity to protect his property from foreclosure. However, the parties are free to contract to include a period other than the one month as stated in the section.Thus, this means that the chargee could stipulate a period shorter than one month. This has been overruled in Citibank Bhd v Mohamad Khalid bin Farzalur Rahaman & Ors, COA took the view that when Parliament enactment s.254(1) of the Code and employed therein the words ‘or such alternative period as may be specified in the charge’, it is clearly intended by the phrase to alter the law by enabling a chargee to impose a period of less than a month. S254 of the NLC therefore expressly permits a chargor by contract to accept a statutory notice of less than one month.Section 254(1)(a) & (b) specifying breach in question, requiring it to be remedies within 1 month / any other alternative period with warning if notice not complied with proceedings to obtain an order for sale will be taken. Section 254(2) mentioned that after the notice, the charge land is vested in any other person / body, the notice is valid unto the person as though it was served against to. Section 254(3) shows that if breach occurs, the whole sum of charge will be payable to the chargee. Under case of Syarikat Kewangan Melayu Raya Bhd. v Malayan Banking Bhd, a notice of default in Form 16D wherein it cited, 2 charges and in respect of which the sums due under both charges are lumped together, was held not defective by PC, as on facts of case, chargor has not been prejudiced / misled by any defect therein.Pc held that whether a statutory notice is defective in respect of its contents would depend on whether the chargor is prejudiced or mislead by such defect so as to render the order for sale unjust.After the National Land Code (Amendment) Act 2016 (Act A1516), the chargee may serve on the charger a notice in Form 16D requiring it to be remedied within one month of the date on which the notice is served, or such alternative period as may be specified in the charge which shall not be less than one month, which means that duration of notice of demand, the requirement is at least one month notice under section 254 which possibly to give chargor the opportunity to protect his property from foreclosure.In the case of Kimlin Housing Development Sdn. Bhd. v Bank Bumiputra, upon a breach by the chargor of any of the agreements on his part expressed or implied in the charge continuing for at least a month or such alternative period as may be specified in the charge, notice in Form 16D is served specifying the breach and requiring the chargor to remedy the same within a month of the date of the notice or such alternative period as may be specified in the charge, with a warning that in the event of non-compliance, proceedings to enforce the charge by obtaining a judicial sale will be commenced (s 254(1) of the Code). Under this provision, there will generally be a time lag of at least two months between the date of breach and the commencement of proceedings in court to enforce the charge. In the case of charges where the principal is payable on demand, s 255(1) of the Code provides an alternative procedure by requiring service of a notice in Form 16E, immediately upon such breach, requiring it to be remedied within a month and adding that in the event of non-compliance, proceedings to enforce the charge by obtaining a judicial sale may be forthwith commenced without it being required to serve a notice in Form 16D under s 254(1). Under this provision, there will be a time lag of at least a month between the date of breach and the commencement of proceedings in court to enforce the charge. It is obvious that the advantage of the Notice requirements under ss 254 and 255 of the Code is that it will entail delay, thus affording opportunity to the chargor to bustle about to raise the money to pay the demands. Non-compliance with the notice requirements will render a subsequent order for sale liable to be set aside as being void and of no effect. After the amendment, section 254 (1) (b) which clearly stated on such alternative period as may be specified in the charge which shall not