3rd Agreement being a Proxy Agreement between the 1st defendant and the 4th defendant (30% of the shares) with the plaintiffs. (See Rekod Rayuan Enclosure 7, Page 1025) All the terms of the sale agreed [16] On 01-03-2020 by email ZHC [defendants’ solicitors] wrote to VBA [plaintiffs’ solicitors] to agree to all the terms of the sale and said: We attach the 1st, 2nd and 3rd SSAs which are duly amended … Kindly prepare fair copies of the said Agreement [ sic] for execution. And we shall be much obliged if you could kindly forward to us the fair copies of the First SSA for Dato’ Haji Abdul Rahman bin Mat Yasin’s execution first as he is now in Terengganu. [Emphasis added] (See Rekod Rayuan (Sambungan) Enclosure 7, Page 1104) [17] On 02-03-2020, VBA proposed a minor amendment to the 1st SSA which was to state that the purchase consideration shall be released to the vendors upon registration of the shares under the 1st SSA in the name of the plaintiffs. [See Rekod Rayuan (Sambungan) Enclosure 8 at Pages 1184 -1185] [18] On 03-03-2020, in response to VBA, ZHC confirmed their agreement and stated as follows: “Please proceed with the preparation of the fair copies of the first share sale agreement. We have our clients’ instructions that both vendors will sign the First Share Sale agreement at your place before you by today…” [Emphasis added] [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1277] [19] On 11-03-2020, ZHC issued an email to VBA confirming the following: a) D2 has executed the SSA and the Shares Transfer Forms had been executed and all sets of the Documents were in their possessions; and b) “All sets of the Share Sale and Purchase Agreement will be forwarded to VBA shortly. [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1284] Purported termination by the defendants [20] However, on 25-06-2020 ZHC issued an email to VBA purporting to terminate the sale of the shares on the alleged ground that : “…some of the terms and conditions for the sale and purchase of the shares in the Company cannot be reached by all the parties concerned and since your Clients did not sign the respective agreements yet, we have our clients’ instructions … to cancel/ terminate with the sale” [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1316] [21] By a reply letter dated 30-06-2020 from VBA to ZHC, VBA replied that the plaintiffs regretted that the defendants had chosen to issue a termination notice, the defendants do not have any grounds or basis to issue the termination notice, all the draft agreements were vetted and amended by ZHC and the final copies were only issued after ZHC had agreed to the same and all the SSAs have been duly executed by the defendants and with the knowledge and approval of ZHC, delivered to ZHC by D1 for their custody and possession as agreed. [See Rekod Rayuan (Sambungan) Enclosure 7 at Pages 1318 – 1321]. Suit in the Sessions Court [22] The plaintiffs contend the termination was invalid and sued in the Sessions Court for: i) A declaration that the Share Sales Agreements (SSAs) between the plaintiffs and D1, D2, D3 and D4 are valid and binding in law. ii) An order for specific performance of the SSAs; iii) An order that the defendants do provide the diligence documents together with a complete details account of all outstanding dues payable to the relevant authorities and any other 3rd party; and iv) Special damages in the sum of RM 197,111.56. [23] A full trial was held with 4 witnesses over a period of 6 days. The two plaintiffs testified. The plaintiffs also called one Narindera Pall Singh to testify. [24] D3 and D4 did not give any oral evidence and did not appear in court. For the defence only D1 gave oral evidence. [25] The Sessions Court awarded judgment in favour of the plaintiffs against the appellants. The Judgment can be found in Rekod Rayuan Tambahan Enclosure 33 at page 1 and her grounds of Decision [“GOJ”] at pages 5 to 24. [26] These are the specific findings of fact by the learned Sessions Court Judge: i. The 1st defendant was not an honest witness. [See Ground of Judgment Enclosure 33 paragraph 28]. ii. On 11-03-2020, the appellants’ solicitors have informed the plaintiffs’ solicitors that the appellants have signed the SSAs and the Shares Transfer Forms and will be forwarded to VBA. [See Ground of Judgment Enclosure 33 paragraph 9]. iii. The 1st to 4th defendants have agreed to sell their shares in the 5th defendant to the plaintiffs and they have signed the SSAs for this purpose. However, the 1st defendant who was holding the said agreements refused to release the said agreements to the plaintiffs to be signed until he receives the payment of RM 450,000.00 from the plaintiffs. In this respect, the Sessions Court Judge noted that the plaintiffs have deposited the purchase moneys with their solicitors to purchase the said shares. [See Ground of Judgment Enclosure 33 paragraph 23]. iv. The Sessions Court Judge held that the purported termination of the sale by the defendants was unlawful. [See Ground of Judgment Enclosure 33 paragraph 26]. v. The Sessions Court Judge proceeded to grant judgment to the plaintiffs for, inter-alia, specific performance of the agreements. [See Ground of Judgment Enclosure 33 paragraph 36]. [27] The appellants appealed to me. The appeal before me [28] As I see it, the sole issue before me is whether the Sessions Court was right in granting specific performance of the Share Sale Agreements as against the Appellants in respect of their shares in the 5th defendant. The Law on specific performance of an agreement [29] The law on specific performance of an agreement is well-settled. I need only refer to just one case. [30] The Court of Appeal in Loo Choo Teng & Anor v Cheok Swee Lee & Ors [2000] 1 MLRA 104 CA when granting an order for specific performance of an agreement to sell a land speaking through Gopal Sri Ram JCA said: [24] In the present instance, it is amply clear that the learned judge failed to consider sufficiently, or at all, the effect of cl 8 when exercising his discretion to decree specific performance. … it would, in my judgment, be unjust to the plaintiffs to deny them specific relief altogether. It must not be forgotten that there is here a contract for the sale of immovable property. It is the kind of obligation that statute rebuttably presumes to be incapable of being remedied by an award of monetary compensation. (See, s 11(2) of the Specific Relief Act 1950.) Moreover, this appears to be a case where the vendors, having entered into a perfectly valid transaction went about inventing all sorts of excuses to get out of it. Having failed in their efforts, it would be quite wrong to permit them to succeed, as it were, on the strength of a mere side-wind. The main obstacle envisaged by the parties to the sale was the State’s refusal to release the subject property from compulsory acquisition. That hurdle having been crossed, all that remains is the mere formality of obtaining the court’s sanction for the sale. This is therefore an appropriate case to decree specific performance, not as ordered by the learned judge, but on terms. [25] In my view, a Court of Equity is sufficiently empowered to decree specific performance on terms. There are cases where an order decreeing specific performance has made provision for ancillary matters, such as the payment of purchase money with interest. (See, eg, Cooper v. Morgan [1909] 1 Ch 261.) In such cases, the payment of the purchase price is a term upon which relief is granted. If there is non-compliance, the vendor must surely be at liberty to apply to have the decree vacated. [26] There is also precedent for decreeing specific performance and then leaving it to the defendant to later apply to have the decree vacated on the ground of impossibility of performance. Thus, in Sekemas Sdn Bhd v. Lian Seng Co Sdn Bhd [1989] 1 MLRA 101; [1989] 2 MLJ 155; [1989] 1 CLJ 154, Lee Hun Hoe CJ (Borneo) when delivering the judgment of the Supreme Court said (at p 157): In Johnson & Anor v. Agnew [1979] 1 All ER 883, the House of Lords varied the order of the Court of Appeal holding that if a vendor obtained an order for specific performance and it became impossible to enforce it, he then had the right to ask the court to discharge the order and terminate the contract. On such an application he could be awarded damages at common law for breach of contract since the contract was not rescinded ab initio but remained in existence until it was terminated by the court. [27] Each case must depend on its own facts. The terms, if any, that may be imposed must ex necessitae rei depend on the facts and circumstances of the particular case [Emphasis added] Application to facts [31] In my view, the Sessions Court was right in granting specific performance of the Share Sale Agreements as against the appellants in respect of their shares in the 5th defendant. I have no reason to disturb the order as an Appellate Court. [32] The Sessions Court has made the following finding of fact, i.e. that the 1st to 4th defendants have agreed to sell their shares in the 5th defendant to the plaintiffs and they have signed the SSAs for this purpose. However, the 1st defendant who was holding the said agreements refused to release the said agreements to the plaintiffs to be signed until he receives the payment of RM 450,000.00 from the plaintiffs. In this respect, the Sessions Court judge noted that the plaintiffs have deposited the purchase moneys with their solicitors to purchase the said shares. [See Ground of Judgment Enclosure 33 paragraph 23]. [33] It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. The appellate court has a duty to intervene only where a trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. [34] An authority for this proposition is Sivalingam a/l Periasamy v Periasamy & Anor (1995) 2 MLRA i at pages 433 - 434 where Gopal Sri Ram JCA said: [10] It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. … under a duty to intervene where … the trial court has so fundamentally misdirected itself, that one may say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. Ample evidence to support the Sessions Court’s finding that there is a valid contract formed [35] Further to my mind there is ample evidence to support the Sessions Court’s finding that there is a valid contract formed: i. On 01-03-2020 by email ZHC [defendants’ solicitors] wrote to VBA [plaintiffs’ solicitors] to agree to all the terms of the sale and said: We attach the 1st, 2nd and 3rd SSAs which are duly amended … Kindly prepare fair copies of the said Agreement [ sic] for execution. And we shall be much obliged if you could kindly forward to us the fair copies of the First SSA for Dato’ Haji Abdul Rahman bin Mat Yasin’s execution first as he is now in Terengganu. [Emphasis added] (See Rekod Rayuan (Sambungan) Enclosure 7, Page 1104) ii. On 02-03-2020, VBA proposed a minor amendment to the 1st SSA which was to state that the purchase consideration shall be released to the vendors upon registration of the shares under the 1st SSA in the name of the plaintiffs. [See Rekod Rayuan (Sambungan) Enclosure 8 at Pages 1184 -1185] iii. On 03-03-2020 in response to VBA, ZHC confirmed their agreement and stated as follows: “Please proceed with the preparation of the fair copies of the first share sale agreement. We have our clients’ instructions that both vendors will sign the First Share Sale agreement at your place before you by today…” [Emphasis added] [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1277] iv. On 11-03-2020, ZHC issued an email to VBA confirming the following: a) D2 has executed the SSA and the Shares Transfer Forms had been executed and all sets of the Documents were in their possessions; and b) “All sets of the Share Sale and Purchase Agreement will be forwarded to VBA shortly. [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1284] Purported termination by the defendants is clearly invalid [36] On 25-06-2020 ZHC issued an email to VBA purporting to terminate the sale of the shares on the alleged ground: “…some of the terms and conditions for the sale and purchase of the shares in the Company cannot be reached by all the parties concerned and since your Clients did not sign the respective agreements yet, we have our clients’ instructions … to cancel/ terminate with the sale” [See Rekod Rayuan (Sambungan) Enclosure 8 at Page 1316] [37] This purported ground for termination is clearly contradicted by the evidence I have set out above. Whether the remedy is specific performance or damages [38] I now move to the issue whether the appropriate remedy is specific performance or damages. [39] When it comes to agreement to buy shares the Court clearly can and should grant specific performance by virtue of section 11 (1)(c) illustration [c] of the Specific Relief Act 1950 which provides as follows: Cases in which specific performance is enforceable 11(1) Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of court, be enforced- (a) …………