For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Parcel. [17] As noted, there was no dispute as to the fact that the defendant had failed to deliver vacant possession of the apartment unit within the thirty- six-month period as prescribed in the sale and purchase agreement. In this case, the defendant delivered vacant possession to the plaintiff on 27 August, 2019. [18] The contentious point pertained to the issue of when did the cause of action accrue and the corresponding question of whether limitation had set in at the time the plaintiff commenced the action. The defendant’s contention [19] The defendant pointed out that as the sale and purchase agreement was dated 15 May, 2012, the date for delivery of vacant possession was 14 May, 2015. Accordingly, the defendant argued that the plaintiff’s cause of action accrued on 15 May, 2015. Based on the limitation period of six years, the last date for filing the action was on 14 May, 2021. Since the plaintiff only commenced his action on 8 October, 2021, the defendant contended that the plaintiff’s action was time-barred under section 6(1)(a) of the Limitation Act 1953. [20] On the basis of the limitation defence, the defendant put forward the argument that “Responden/Plaintif tidak mempunyai tuntutan terhadap Perayu/Defendan kerana tuntutan Responden/Plaintif dihalang oleh had masa”. The defendant also reasoned that the limitation defence raised meant that the there was an issue which ought to be tried. (see para. of the defendant’s written submission in enclosure 7) [21] The defendant relied on Ambank (M) Bhd v. Metroplex Sdn Bhd [2011] LNS 529; [2012] 8 MLJ 832 (“Metroplex”), Datuk Bandar Kuala Lumpur v. Pembinaan RT Sdn Bhd [2012] MLRAU; 518; [2013] 2 MLJ 873 (“Pembinaan RT”) and International Limited v. Petronas Carigali Sdn Bhd [2021] 6 MLRH 74 for the proposition that when limitation is raised, it becomes a triable issue and the matter before the Court should not be determined through the summary judgment procedure. [22] Another important submission by the defendant was in relation to the point that the plaintiff had failed to plead that his action was well within the limitation period, that is, his action was not time barred. In this regard, reference was also made to the fact that the plaintiff had failed to plead clause 24(3) of the sale and purchase agreement. The defendant relied on the decision of the Federal Court in Seven Seas Supply Co v. Rajoo [1966] 1 MLJ 71 (“Seven Seas”). The plaintiff’s contention [23] According to the plaintiff, since the defendant’s sole objection to the granting of summary judgment was based on the limitation defence, the singular issue for determination was when did the cause of action arise. The plaintiff relied on Clause 24(3) in the sale and purchase agreement and argued that it was clear that the cause of action accrued “on the date the Purchaser takes vacant possession of the said Parcel”, which in this case was 27 August, 2019. Hence, when the plaintiff commenced the Writ action on 8 October, 2021, the plaintiff was well within the six-year limitation period as prescribed in the Limitation Act 1953. The decision of the Court on Appeal No 101 [24] The defendant reminded this Court that the Supreme Court in United Malayan Banking Bhd v. Pembinaan KSY Sdn Bhd & Ors [1993] 2 AMR 2169; [1993] 3 CLJ 612; [1993] 3 MLJ 45 had articulated the approach to be taken by an appellate court in an Order 14 appeal. That approach calls for an appellate court to not regard an appeal as reviewing the exercise of the judge’s discretion but should approach the appeal as a rehearing. I take cognizance of the above directive and this was how this present appeal against the summary judgment was approached. [25] On the issue of whether the sole limitation defence raised by the defendant resulted in an issue that ought to be tried, the answer may be in the affirmative or in the negative. If, for example, the date as to when a cause of action had accrued is unclear and will have to be determined by the Court, the limitation point has thus become a triable issue. This was the very scenario illustrated in the cases cited by the defendant, namely, Metroplex and Pembinaan RT. However, where, for example, the date the cause of action had accrued is not disputed and thus whether limitation has or has not set in is no longer an issue, the limitation defence ought to outright succeed or fail. In the event of the former, an application for summary judgment should be dismissed. As for the latter, summary judgment ought to be granted in favour of the applicant. [26] In the present appeal, Clause 24(3) of the sale and purchase agreement expressly provides that “the date the Purchaser takes vacant possession” shall be the date of the accrual of the cause of action to claim liquidated damages. Hence, cases such as Metroplex and Pembinaan RT can be distinguished. The cause of action for a claim in liquidated damages in present case accrued on 27 August, 2019. The plaintiff’s action which he commenced on 8 October, 2021 was not time barred. As limitation was the sole point raised by the defendant, the defendant had not succeeded in raising an issue which ought to be tried within the meaning of Order 14 rule 3 of the Rules of Court 2012. [27] I next deal with the issue of for want of pleading by the plaintiff. The defendant adamantly argued that the plaintiff failed to plead Clause 24(3) of the sale and purchase agreement and the point that his action was not time barred. This failure on the part of the plaintiff to plead those points, according to the defendant, meant that summary judgment should not be granted to the plaintiff. [28] This Court is mindful of the importance of pleadings and will adhere to the strict principle which requires parties in the civil litigation process to pay serious notice to this aspect of practice and procedure. In addition to the decision of the Federal Court in Seven Seas that was cited by the defendant, reference can also be made to the decision of the Supreme Court in Lee Ah Chor v Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 MLJ 428. [29] While a party that intends to rely on the defence of limitation is required to plead the limitation point – see for example, section 4 of the Limitation Act 1953 and Order 18 rule 8 of the Rules of Court 2012 – there is nothing in the statute book nor the rules of court that requires every plaintiff or claimant to plead that his or her claim is not barred by limitation. [30] It is true that in exceptional circumstances a plaintiff may anticipate that a defendant will raise the limitation defence and thus ought to, for example, plead acknowledgement of the debt or part payment by the defendant, if indeed there were such an acknowledgment or part payment. If acknowledgment or part payment were pleaded in the Statement of Claim, “the defendant may thereby be led to refrain from raising the issue of limitation in the defence, thus narrowing the area of discovery and reducing costs”. It would also make a reply unnecessary. These observations were made by the Federal Court in KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1LNS 169; [1981] 2 MLJ 10. More importantly, the Federal Court noted that “it is a matter of indifference to the court whether the plea of acknowledgment is pleaded in the statement of claim or in the reply”. [31] In the instant appeal, the law does not impose any legal obligation on the plaintiff to raise the point that his claim was not barred by limitation. However, since the defendant had raised the defence of limitation and the specific issue pertaining to the date of the accrual of the cause of action, the plaintiff was obliged in law to respond to the defendant’s plea. I am satisfied that the plaintiff had sufficiently done so in his Reply at paragraph 6 to the defendant’s Defence. [32] The appeal against the decision of the Sessions Court in granting summary judgment to the plaintiff is dismissed with costs. [33] The defendant to pay costs of RM5,000. Appeal against dismissal of striking out application [34] On Appeal No 102, the main issue for consideration was whether the defendant had managed to satisfy the Court that the plaintiff’s Writ and Statement of Claim ought to be struck out pursuant to Order 18 rule 19(1)(b) and/or (d) of the Rules of Court 2012. The basis of the defendant’s application was that limitation had set in and thus the plaintiff’s claim was barred by limitation. [35] As I have dismissed the appeal by the defendant against the decision of the Sessions Court in granting summary judgment to the plaintiff on his claim for liquidated damages, the application by the defendant to strike out the plaintiff’s Writ and Statement of Claim would also fail. [36] Be that as it may, the authorities cited by the defendant in support of its appeal merit proper and thorough appraisal. [37] The defendant referred to the decision of the Federal Court in Loh Wai Lian v. SEA Housing Corporation Sdn Bhd [1987] 1 LNS 37; [1984] 2 MLJ 280 (“Loh Wai Lian”) where the cause of action was founded on a breach of contract. The breach committed by the respondents was in respect of their failure to complete and give vacant possession of the shophouse within eighteen months of the date of the agreement. The issue was whether the appellant had commenced the action within the limitation period. Hence, except for the fact that the time period for delivery of vacant possession in that case was eighteen months instead of thirty-six months as in the case before us, the facts, the nature of the claim and the overriding issue are similar. [38] It is understandable as to why the defendant in the instant appeal had referred to the Federal Court decision in Loh Wai Lian. The Federal Court had ruled that the appellant was out of time. The Federal Court had made the following observations, which, to say the least, were logical. … counsel for the appellant, strenuously contended that time started to run under the Limitation Ordinance, either from November 7, 1977 (date of actual completion and delivery of possession) or from April 26, 1980 (date of respondents' refusal to pay after demand was made). In both events, the filing of the action on September 9, 1982 would be within the requisite six-year period of limitation. However, … counsel for the respondents, was unshakeable in his submission that based on the written agreement, time started to run from September 18, 1975 as that was the date when the respondents committed a breach of the agreement to complete and give vacant possession of the shophouse to the appellant "within eighteen (18) calendar months from the date of this agreement", as provided in clause 17. … … The breach committed by the respondents was in respect of their failure to complete and give vacant possession of the shophouse within 18 months of the date of agreement. The proviso to clause 17 provided a relief but by itself it could not create a cause of action. The right to liquidated damages provided therein would only arise if there was a breach in completing and giving vacant possession within 18 months or within such extension of time as might have been allowed. For the appellant to succeed, the breach must be proved. Hence reading paragraphs 4 to 8 of appellant's Statement of Claim, it was clear to us that although the relief or remedy claimed was for liquidated and other damages, the cause of action was for breach of contract for the delay. Under section 6(1)(a) Limitation Ordinance, the appellant must therefore file the action within 6 years from the date on which the cause of action accrued. … … In this appeal the action was founded on contract and not on any other right. As the date of breach was known, there was no necessity to enter into argument about the date of infringement of right or threat of infringement of such right. The cause of action accrued on the known date of breach and time started to run from that date. … the measure of liquidated damages under the proviso to clause 17 could not affect the accrual of cause of action. … Further, the argument appeared to be that failure on the part of the respondents to complete the shophouse within 18 months was not the sole cause of action but that the cause of action was not complete until the shophouse was actually completed and vacant possession given to the appellant. Such a proposition would in fact mean that if the respondents did not complete the shophouse, accrual of cause of action could be postponed indefinitely. We do not think that the proviso to clause 17 of the agreement could have that effect on the Limitation Ordinance in an action founded on contract. A distinction must clearly be recognised between a cause of action and the relief claimed. The date of completion of the shophouse was only necessary to quantify the maximum relief under clause 17 which could be done subsequently by evidence. It could not constitute an impediment to the cause of action being complete. The breach had occurred on September 18, 1975 giving rise to a complete cause of action, and the accrual of cause of action would not be postponed by temporary lack of evidence pertaining to maximum relief claimable resulting from such breach irrespective of whether the damages claimed were liquidated or unliquidated. In the circumstances of the present case, we would not agree to the proposition that the cause of action was not complete until the shophouse was completed. What the appellant ought to have done once the breach had occurred on September 18, 1975 was to bring an action within six years from that date. Just as in running down cases, a cause of action in tort must be kept alive within six years from date of accident, although at time of filing the writ not all quantum of damages to be claimed could be ascertained. In the same manner the liability to pay liquidated damages arose under clause 17 as soon as a delay occurred but the quantum would depend on the date of actual completion of the shophouse. (Own emphasis). [39] Reliance on this authority by the defendant, albeit it being a decision of the Federal Court, was misplaced for several reasons. First, the decision of the Federal Court had been overruled by the Privy Council. In Loh Wai Lian v. SEA Housing Corporation Sdn Bhd [1987] 1 LNS 37; [1987] 2 MLJ 1. The Privy Council reasoned as followed: A construction which would import into the clause a fresh obligation on the vendor to pay the calculated amount at the end of each day would be capricious, involving as it does a series of breaches of contract as each day passes without payment being made. The whole tenor of the clause is, in their Lordships' view, that the vendor is assuming as a matter of contract and subject to the occurrence of the condition precedent that the building remains uncompleted on the stipulated date, an express contractual obligation to pay a single sum which cannot become due, because it cannot be ascertained, until the building has been completed and possession can be delivered. If the question is asked "in the absence of such an express provision when would the purchaser's right of action for damages for breach of contract accrue?", the answer is plainly the date on which the breach occurred. But parties to a contract are, of course, entitled to regulate or modify their rights in the event of breach in any way that they think fit and the accrual of any cause of action then becomes a matter of the correct construction of what they have provided. This appeal raises no point of principle but simply a question of what is the true construction of the contract in which the parties entered. In their Lordships' judgment, the only sensible construction of clause 17 is, as Mr. Kidwell has contended, that it imposes an obligation to pay, in substitution for any other right to damages which the purchaser might otherwise have, a single sum to be calculated and ascertained at a particular date and that until that sum has been ascertained it does not become due and cannot be sued for. [40] Regardless of whether one finds the reasoning of the Federal Court or that of the Privy Council to be more convincing, the fact remains that the decision of the former had been overruled by the latter. [41] Another point worthy of mention relates to the applicable clause in the Loh Wai Lian case. In that case, neither the Federal Court nor the Privy Council was concerned with a clause that bore any semblance to our Clause 24(3). [42] This brings us to another decision of the Federal Court referred to by the defendant, namely, Persekutuan Insun Development Sdn Bhd v. Azli Bin Bakar [1996] 2 AMR 1921; [1996] 2 CLJ 753; [1996] 2 MLJ 188 (“Persekutuan Insun Development”). The facts, the nature of the claim and the overriding issue are once again similar to the instant case under consideration. [43] Persekutuan Insun Development had distinguished the Privy Council decision in Loh Wai Lian. Edgar Joseph Jr FCJ very ably explicated the distinguishing aspects between these two cases. His Lordship explained as follows: In the present context, we have to consider whether there is any, and if so what, material difference between the contract of sale in Loh Wai Lian and the agreement here. The obvious difference between the contract of sale in Loh Wai Lian and the agreement here which we consider to be most material is this: under the former, the statutory formula for the calculation of the indemnity was modified by expressly stating not only the terminus a quo(the opening date) but also the terminus ad quem (the closing date), which was the date of actual completion and delivery of possession, whereas under the latter – although there is, by cl 18(2), also a formula for the calculation of liquidated damages – it only specifies the terminus a quo but not the terminus ad quem. In our view, this difference is a matter of critical substance. It is obvious from the judgment of the Privy Council in Loh Wai Lian that but for the unusual language of cl 17 of the contract of sale, which had provided a formula for the computation of damages payable by the developer to the buyer for delay, by defining not merely the terminus a quo(the opening date) required under r 12(1)(r) of the 1970 Rules but also the terminus ad quem (the closing date) – not required under r 12(1)(r) – the case would have been differently decided, for their Lordships said this (at p 4): If the question is asked 'in the absence of such an express provision when would the purchaser's right of action for damages for breach of contract accrue?', the answer is plainly the date on which the breach occurred. But parties to a contract are, of course, entitled to regulate or modify their rights in the event of breach in any way that they think fit and the accrual of any cause of action then becomes a matter of the correct construction of what they have provided. This appeal raises no point of principle but simply a question of what is the true construction of the contract in which the parties entered. In our view, for the reasons stated Loh Wai Lian is, therefore, readily distinguishable from the present case and accordingly, the judge was, with respect, wrong in holding that it was of decisive importance to the question which arose for decision. [44] In Persekutuan Insun Development, the Federal Court held that the respondent purchaser was out of time. However, the Federal Court in no uncertain terms also held as follows: It is clear law that in the absence of express contractual provision, the purchaser's right to sue for damages would accrue on the date of the breach of contract (see Nasri v Mesah [1971] 1 MLJ 32 at p 34; Reeves v Butcher [1891] 2 QB 509 at p 511; Gibbs v Guild (1881–1882) 8 QBD 296 at p 302). But, the parties to a contract are free to regulate or modify their rights in the event of breach thereof in such a manner as to postpone the date of accrual of their right to sue for damages which, of course, was what had happened in Loh Wai Lian. [45] Three observations are apposite at this juncture. First, the Federal Court in Persekutuan Insun Development was applying the provision of Regulation 12 of the Housing Developers (Control and Licensing) Regulations 1982. As noted by the Federal Court, the considerations were different from that in Regulation 12 of the Housing Developers (Control and Licensing) Rules 1970. In the same vein, the deliberations and outcome would altogether be different when one considers Clause 24(3) in the instant case. Clause 24(3) is the reproduction of Clause 25(3) in