The question of whether a term is to be implied involves the same approach as interpreting the words used. A term will not be implied unless the consequences if not making the implication would contradict what “any” (rather than “a”) reasonable person would understand the contract to mean. Implication of the term must be necessary to ensure that the agreement achieves the parties’ express agreement, purposively construed against the admissible background, and it is not enough that the term is reasonable.’ [50] Although the Court must consider commercial common sense in the interpretation of Clause 7.2 of the SHA and 5.1(b) and (c) of the SSA, it requires evidence of the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract and have regard to the relevant surrounding circumstances as aid to the interpretation of the same. This cannot be had in the present application by way of an originating summons. [51] Moreover, even if the amount owing can be said to be the amount outstanding at the time of settlement as contended by the Plaintiff, there is a need to work out the exact sums actually owed by each subsidiary as the Defendant is not in agreement with the figures placed before this Court by the Plaintiff. The debt positions had not remain static since the SHA and SSA were executed as there were some repayments made and further debts incurred. There may also be issues of set off that would require some working out. [52] For orders of specific performance, the rationale and need for certainty in the terms of the order was emphasised by the House 21 of Lords in Co-operative Insurance Society Ltd v. Argyil Stores (Holdings) Ltd [1998] A.C.1 in these terms: ‘One such objection, which applies to orders to achieve a result and a fortiori to orders to carry on an activity, is imprecision in the terms of the order. If the terms of the court’s order, reflecting the terms of the obligation, cannot be precisely drawn, the possibility of wasteful litigation over compliance is increased. So is the oppression caused by the defendant having to do things under threat of proceedings for contempt. The less precise the order, the fewer the signposts to the forensic minefield which has to traverse. The fact that the terms of a contractual obligation are sufficiently definite to escape being void for uncertainty, or to found a claim for damages, or to permit compliance to be made a condition of relief against forfeiture, does not necessarily mean that they will be sufficiently precise to be capable of being specifically enforced…’ [53] The Plaintiff had suggested that the orders for specific performance can be made with further orders for the parties to come to Court to work out the details on the actual sums due. This includes even varying the order in cases where the subsidiaries are found to be incapable of making the payments. [54] The Plaintiff’s said invitation, if accepted, will lead to this Court being burdened with the task of supervising the execution and compliance of the orders; to interpret the scope of the obligations and to resolve incidental issues arising from the settling of the accounts. Not only will this mean protracting the litigation and 22 increasing the costs, it will also require unnecessary investment of precious judicial time which this Court is not inclined to do. [55] In a final attempt, the Plaintiff sought to rely on an alternative ground for the orders of specific performance - citing the following passage in Snell’s Equity, 32nd Ed. para 17-011: ‘(d) In most cases a monetary remedy of damages or the action for an agreed sum will be an adequate remedy for breach of a contract for the payment of money, but in exceptional cases such a contract may be specifically enforced. This may occur where the action for an agreed sum would be unavailable or unsuitable, such as where the contract is to pay a third party, so that damages recoverable by the contracting party would be merely nominal, or where the contract is to make periodical payments, requiring a multiplicity of actions at law to enforce payment. Although the third party cannot himself sue on the contract, he can enforce any order for specific performance which the contracting party obtains…’. [Emphasised added] [56] This contention is a departure from the Plaintiff’s submission that it had sustained damages in terms of the diminution of its share value. The thrust of the submission based on diminution of share value is that the Plaintiff had sustained substantial damages but is unable to recover any meaningful damages from an insolvent defendant, hence the need for an order for specific performance. [57] On the other hand, the basis for the new contention is that the Plaintiff’s damage is merely nominal and an order for damages would not meet the bargain made for the amount owing by the 23 Defendant’s subsidiaries to PMSB’s subsidiaries to be settled by an agreed date which had been breached. The case of Beswick v. Beswick [1968] A.C 58 was referred as an authority for this proposition. [58] Quite apart from the fact that the Plaintiff’s argument is based on an inconsistent stance, the case of Beswick v. Beswick (supra) can be easily distinguished as in that case, the issues set out in paragraphs 43 to 54 above which plague an order for specific performance were not present. [59] The Defendant also submitted that the Plaintiff’s claim for specific performance is barred by laches. [60] Our Supreme Court in M Ratnavale v. S Lourdenadin [1988] 2 MLJ 371 held that the conduct of the applicant is a material consideration: ‘However, the discretion is not an arbitrary or capricious discretion but it is to be exercised on fixed principles. The conduct of the plaintiff such as delay or laches or breach on his part or some other circumstances outside the contract may render it inequitable to grant the remedy of specific performance.’ [61] The Defendant contended that the Plaintiff has not provided any cogent explanation as to why it did not make the claim timeously. The agreements provide for the Defendant to meet its undertaking to settle the debts ‘within thirty six (36) months from the date of this Agreement’ in respect of the amount owing by the Defendant’s 24 subsidiaries and ‘by October 2015’ in respect of the Defendant’s debt to Roti-Roti International Sdn Bhd. Although the obligations were extended to 2017, the Plaintiff only filed this application in 2020, a good 3 years later. [62] According to the Defendant, the need for an explanation is imperative when one considers that the agreements contemplated that ‘the parties will jointly explore the exit strategy of the Company at the end of three (3) years form the date of this Agreement …’. [63] The maxim that delay defeats equities or equity aids the vigilant and not the indolent is not without qualification. In this connection, the following passage from Snell’s Equity, 32nd Ed. para 5-019 is instructive: ‘Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim in equity. The first of these circumstances is a reasonable, and detrimental reliance by the defendant upon the claimant’s delay. Lord Neuberger has recently held that ‘some sort of detrimental reliance is usually an essential ingredient of laches. Alternatively, if is necessary for there to be some clear act of the claimant which amounts to an acquiescence or waiver of his rights.’ [64] In my judgment, the Defendant has not shown any detrimental reliance arising from the Plaintiff’s delay in enforcing the obligations under Clause 7.2 of the SHA and Clause 5.1(b) and