Mohd Azhar Bin Alkab v Sendereprakasam A/L Subramaniam (B-02(NCvC)(W)-862-07/2020)

(a) the SPA was conditional upon the Respondent obtaining the consent to transfer/sell the Property;

(b) the consent was secured on 25-10-2003 and as its validity was limited for a period of 6 months hence had lapsed by the 24-4-2004; and

(c) no evidence was led to establish that the validity period of the consent had been extended or renewed. [29] There was no express time to secure the consent where time is not at large but to be fulfilled within a reasonable time. Reference was made to Jaafar bin Ibrahim v Gan Kim Kin [1985] 2 MLJ 24. [30] The alternative argument was that there was impossibility of performance and effluxion of time. Here, DW1 from the Firm while stating a delay of 17 years to complete the SPA is not unreasonable had at the same time agreed the SPA is now impossible of performance. There was an unexplained delay on the part of the Firm to complete the transaction. The Respondent cannot be held responsible for the manner in which the Firm chose to conduct the transaction nor can he held liable for his obligation to secure the consent as that was entrusted entirely to the Firm. [31] The claim for rental was on the basis of an oral tenancy agreement. [32] With regard to bare trust, the Appellant has not proved the payment of the full purchase price or that the Respondent has received the balance purchase price. The settlement of the Maybank loan by the Appellant has also not been proved. The HCJ had found the signature on the Receipt and Reassignment was not that of the Respondent; that the Respondent had no knowledge of the payments and who made them and the Firm never kept the Respondent informed of such payments. [33] The counterclaim was a non-starter as there was no proof of payments and any payment was made to the Firm and not to the Respondent. Limitation had also set in where the last payment was made on 18-1-2007 and the counterclaim was filed on 12-12-2018. Laches also applied where the Appellant did nothing to seek the equitable remedy of specific performance of the SPA. Our decision Payment of purchase price [34] We will first consider whether the Appellant had made the payments as required under the SPA. It is not disputed that the deposit of RM8,500 has been paid by the Appellant upon the execution of the SPA. This is reflected in Item F where the deposit is stated to be RM8,500 and clause 1.2 where the deposit shall be paid forthwith upon execution of the SPA. [35] It is the Appellant's position that apart from the deposit, he paid RM41,500 on 25-9-2001, RM31,500 on 5-7-2006, RM16,000 on 18-1 2007 and rental of RM450.00 from August 2005 till July 2006 amounting to RM5,400. [36] The payment of RM41,500 was admitted by DW1 during cross examination (enclosure 49/67-71) and supported by a receipt dated 25-9- 2001 issued by the Firm to the Appellant (enclosure 8/93). This showed that the Firm had received the said sum towards the payment of the property. This effectively turned out as a redemption of the property. [37] The payment of RM31,500 on 5-7-2006 was supported by a receipt dated 5-7-2006 issued by the Firm to the Appellant (enclosure 50/39). This showed that the Firm had received the said sum towards the payment of the property. This too effectively turned out as a redemption of the property. [38] Both the payments were towards the settlement of the Maybank loan. It is not disputed the Respondent had taken a loan to purchase the property from the previous proprietor. By letter dated 17-8-2005 (enclosure 50/37), the Firm had duly informed the Appellant of the need to settle the differential sum. The Firm thereupon obtained the bank statement dated 29-8-2005 as to the outstanding differential amount which showed the amount to be RM82,412.48 (enclosure 50/25). This amount was confirmed by PW2, the Maybank officer (enclosure 48/94 95). [39] The earlier payment of RM41,500 would also be directed to the settlement of the Maybank loan. This can be confirmed by the bank statements issued by Maybank on 29-8-2005 for an outstanding amount of RM82,412.48 and dated 21-8-2006 (enclosure 50/26) which showed a balance of RM44,568.15. There was therefore a reduction of RM37,844.33 on the current balance amount due and owing under the Maybank loan. [40] Upon the Respondent's request for rental arrears and other late payment charges in end 2006, the Appellant made a payment of RM16,000. This can be seen in the Respondent's own letter dated 18-1- 2007 to the Firm (enclosure 50/53) confirming he had received RM16,000 from DW1 being arrears in rental and other late payment dues. [41] On the payment of rental of RM450.00 from August 2005 till July 2006 amounting to RM5,400, the evidence of the Appellant is that since he had paid RM50,000, he was allowed to move into the property around July 2002. This evidence is credible since we had earlier found that there were two payments of the deposit of RM8,500 and RM41,500 by the date of execution of the SPA. It was upon the advice from the Firm that a rental of RM450.00 be paid towards the Maybank loan as from August 2005. Refer to the letter from the Firm dated 7-8-2005 to the Appellant (enclosure 50/33-34). [42] The HCJ stated in paragraphs 43 and 44 of the grounds of judgment (enclosure 48) as follows: "[43] The evidence of DW1 who managed the said solicitors firm failed to proved that the payments by the deceased to complete the SPA had been received by Plaintiff or that he had notice of the moneys paid to account of the SPA or towards settlement of his MBB housing loan account. [44] 2 It is noteworthy that the very basis of the Defendant's case in seeking title and interest in the subject property was not supported by evidence of full settlement of the purchase price. The Defendant or the deceased paid the balance purchase price to the Firm and not to the Plaintiff. DW1 conceded during cross-examination that the balance purchase price was not released to the Plaintiff. Hence, as the deposit of RM8,500.00 which he admitted receiving, and any amount paid by the Defendant towards the redemption of the Maybank Loan (which remains to be proved) cannot in law confer proprietary interest in the Property to the Defendant." [43] We find the above to be in error as DW1 as the solicitor acting for the Appellant as the purchaser had received the payments from the Appellant for the settlement of the Maybank loan. DW1 was also acting for the Respondent insofar as the settlement of the Maybank loan was concerned. He had obtained the Maybank statement for the outstanding amount due on redemption. Receipts had been issued by the Firm that the moneys were received from the Appellant towards the settlement of the Maybank loan. The Respondent had in fact confirmed such settlement except that the Respondent had no knowledge of the payments and who made them and the Firm never kept the Respondent informed of such payments. The payment of RM16,000 and RM4,500 were supported by the letters from DW1. [44] Over and above that, there was the letter from the Respondent himself dated 18-1-2007 to the Firm which we had referred to earlier. That letter states as follows: "I hereby confirm that I have received the full payment in respect of the above mentioned property from the above named purchasers; vide Agreement dated 10/01/2001 and have executed and signed all the necessary documents in respect of the above mentioned property. Further I wish to confirm that I have receive a sum of Sixteen Thousand (RM16,000.00) being arrears in rental and other late payment dues from Mr. Gopalakrishnan @ Muniandy, in respect of the above mentioned property. As such I hereby confirm that I have no any further claims towards the property or the Purchasers in respect of the above mention property." [45] This letter effectively confirmed the Respondent had received the full payment and the RM16,000. The Respondent's position was that it was not his signature and the signature is not similar to his other signatures in other documents referred to during cross examination such as his police report and letter to Maybank for documents to be released to his solicitor (enclosure 48/228). However, there was no police report made on this (enclosure 48/330). [46] There was also the Receipt and Reassignment (enclosure 50/56- 60) which the Respondent initially confirmed to having signed (enclosure 48/209). When further cross-examined, he reversed course that the signature was not his. Refer to enclosure 48/213 lines 31 to 35 and 214/lines 1-3. This is to be contrasted to DW1's evidence that the Respondent had executed the Receipt and Reassignment in his presence (enclosure 49/43-44). His evidence subsequently in enclosure 49/44 lines 19-37 and 45 lines 1-12 was as follows: "ASB It was executed before you? GOPAL Yes, yes ASB You confirmed that this is their signatures Sir? ASB It is, Sir, since this document, receipt and reassignment has been dated 09.07.2009, can we say that at least Mr Sendereprakasam and Mr Guna Seelan would have put down their signature here, the latest will be 9th July. Can you agree? GOPAL Yes, yes. ASB 2009. If that's the case Sir,would Mr Sendereprakasam have the due knowledge with regard to this full payment of his loan. ASB In the year 2009? ASB He must have GOPAL He must have ASB Yes or no Sir? GOPAL Yes, yes." [47] Hence, not only did DW1 confirm to the Respondent signing the Receipt and Reassignment in his presence, he further confirmed the Respondent would have due knowledge of the full payment of the Maybank loan. [48] The original documents pertaining to the Maybank loan were released to the Firm on 22-12-2008 (enclosure 50/49). It is a fact that upon settlement of a finance loan, such original documents deposited with the financiers will be released to the borrower for the purpose of discharge of charge and registration under the borrower's name. [49] We find that the Respondent's letter dated 18-1-2007 to the Firm which confirmed the Respondent had received the full payment and the RM16,000 and the Receipt and Reassignment being signed by the Respondent, were not considered by the HCJ. Whether oral tenancy [50] On the existence of an oral tenancy agreement, we had earlier found the Appellant was allowed to move in around July 2002 as he had paid RM50,000 towards the property. There was no issue from the Respondent on any rental due and no demand was ever made. In fact, It was upon the advice from the Firm by letter dated 7-8-2005 that a rental of RM450.00 be paid towards the Maybank loan as from August 2005. When the Respondent lodged a police report dated 9-7-2006 on DW1's conduct, there was no mention of any oral tenancy agreement. Refer to enclosure 50/76: "... Pada 31.07.2002 En. Muniandy memberitahu saya bahawa segala urusan penjualan rumah tersebut telah selesai dan dia menyuruh saya memberi kunci kepada pembeli tersebut dan memberitahu saya akan mendapat surat daripada bank. ..." [51] There was also an undated letter (enclosure 50/24) from the Respondent to state he had sold the property and that the purchaser/s were authorised to occupy the property with immediate effect from 25-8 2004. That letter reads as follows: "I have sold the above mentioned property by way of Sale & Purchase Agreement dated 10/11/2001. Further I hereby authorize and confirm the above named Purchasers to fully occupy the above mentioned property with immediate effect from 25/08/2004." [52] The evidence of the Respondent was that it was not his letter and that the signature was similar to his police report (enclosure 48/221). He had not lodged any police report on the forgery (enclosure 48/224). We find that no consideration was given to this letter issued by the Respondent. [53] On the totality of the evidence, we find that the Appellant had made full payment of the purchase price of the property which included RM16,000 and the rental sum of RM4,500. The payments of RM41,500 and RM31,500 had gone towards the redemption of the property. The Appellant was also allowed to move in to the property on the basis of having paid RM50,000 towards the purchase price. [54] Under the circumstances, the SPA is valid and enforceable at all material times. On this point alone, the appeal is allowed. Contingent contract [55] For completeness we deal with the issue of contingent contact. Here, the HCJ found the SPA was a conditional contract which cannot be enforced against the Respondent when the condition precedent by virtue of clause 1.3 SPA had not been fulfilled and had become frustrated and an impossible condition to be fulfilled. [56] Item H (Completion Date) of the Schedule to SPA provides that the balance sum is to be paid by within 90 days from the date of receipt of the written Consent from the Developer/Vendor/Proprietor. Clauses 1.3 and 2.1 and 4B then set out the following: "1.3 This Agreement is subject to the Vendor(s) obtaining the Developer's written consent for the sale and accordingly the Vendor(s) shall immediately upon the execution of this Agreement apply to the Developer for the said written consent. If such consent is not obtained by the first completion date either party hereto shall be entitled to forthwith upon notice to the other party terminate this Agreement and upon such termination neither party shall have any claims against the other in respect of the said property or under the said Agreement and Assignment and this Agreement and the Vendor(s) shall forthwith refund the said Deposit in full free of interest to the Purchaser(s).

1 The Balance Sum in Item G of the Schedule hereto shall be paid on the Completion Date stated in Item H of the Schedule hereto to the Vendor(s) Solicitors as stakeholder. If the Completion Date falls on a Sunday or a public holiday completion shall take place on such other day as may be agreed by the parties or in default of such agreement on the day other than a Sunday or public holiday next following the Completion Date. 4(B). Non-Completion by the Vendor If by reason of the Vendor's breach of this Agreement (without any prior breach by the Purchaser of this Agreement or any prior rescission of this Agreement), the Purchaser shall be entitled, at his option to either of the following and in either case:-

(i) To specific performance of this Agreement and the sale hereunder by the Vendor of the said Property; or

Effect of refusal of party to perform promise wholly When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirely, the promise may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. [62] In Penang Development Corporation v Khaw Chin Boo and Anor [1993] 3 CLJ 167, it was said at page 168: "First, it is common ground that the written agreement did not fix any time for the performance of the contract. So when no time is specified, the contract must be performed within a reasonable time, s. 47 Contract Act 1950. What is "a reasonable time", is, in each particular case, a question of fact (ibid). However, the plaintiffs cannot arbitrarily fix the time. It must be reasonable having regard to the state of things at the time when notice was given. ..." [63] On reasonable time for performance this was said in Sime Hok Sdn Bhd v Sim Poh Sheng [2013] 2 CLJ 615 at pages 637-838: "[31] On reasonable time for performance, in Ellis v. Thompson, 3 M & W 445 Alderson, B, said that: The correct mode of ascertaining what reasonable time is in such a case is by placing the Court and Jury in the same situation as the contracting parties themselves were in at the time they made the contract; that is to say, by placing before the jury all those circumstances which were known to both parties at the time the contract was made and under which the contract took place. By so doing you enable the Court and Jury to form a safer conclusion as to what is the reasonable time which the law implies and within which the contract is to be performed. Leake on contracts, p. 200: Under a written contract for the sale of goods appointing the time for payment, but silent as to the time for delivery; and, therefore, presumptively importing delivery within a reasonable time upon credit, evidence was held admissible of a usage in the trade, that the delivery should be made concurrently with the payment and could not be demanded before, Field v. Lelean, 6 H & N 617, distinguishing or overruling Spartali v. Benecke, 10 CB 212." [64] The HCJ had accepted the proposition stated in Jaafar bin Ibrahim at page 26 that: "... From the evidence of the parties ... should be construed as a conditional contract or contract subject to contingency, i.e. conditional on, or contingent on the approval of the application by the specified date. What then would be the position of such a contract in regard to the equitable rule that time shall not be the essence of a contract unless there is contrary intention by express words, or from the nature of the transaction or from surrounding circumstances? In this connection, one cannot ignore the Privy Council case of Aberfoyle Plantation Ltd. V Khaw Bian Cheng. The ratio decidendi of that case is that a conditional contract or a contingent contract (i.e. the expression used in our Contracts Act, 1950), is wholly excluded from the operation of that equitable principle aforesaid. Lord Jenkins delivering the opinion of the Board, laid down the following special principles as applicable to a conditional contract:- "(i) Where a conditional contract of sale fixes a date for the completion of the sale, then the condition must be fulfilled by that date;