DALAM MAHKAMAH RAYUAN DI MALAYSIA

[BIDANGKUASA RAYUAN]

RAYUAN SIVIL NO: K-02-1490-2011

ANTARA

MADASAMA GOODWAY SDN BHD[NO. SYARIKAT: 260991-V] ..PERAYU

DAN

LIM ENG HUAT ..RESPONDEN[Dalam Mahkamah Tinggi Malaya di Alor Setar

Dalam Negeri Kedah DarulAman, MalaysiaGuaman Sivil No: 22-238-2002

Antara

Lim Eng Huat .. Plaintif

Dan

Madasama Goodway Sdn Bhd[No. Syarikat: 260991-V] .. Defendan]

THE RESPONDENT’S WRITTEN SUBMISSION

A. INTRODUCTION

1. This is an Appeal by the appellant/Defendant against the Judgment pronounced by the High Court of Alor Setar on 15.5.2011 in favour of the Respondent/Plaintiff in the Civil Suit No. 22-238-2002 wherein the Learned High Court Judge, Mohd. Sofian Bin Abd Razak.

2. The Appellant herein was the Defendant in the Civil Suit No. 22-238-2002 whereas the Respondent named herein was the Plaintiff in the said Civil Suit.

B. THE BACKGOUND OF THE CASE

THE RESPONDENT/PLAINTIFF’S CASE

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1. The Respondent/Plaintiff’s case against the Appellant/Defendant, a company which is familiar with Real Estate properties, is basically for the Specific Performance of the Sale and Purchase Agreement date 19.7.2002 for the purchase of the land known as PT No. 1233, Mukim Sungai Seluang, Daerah Kulim, Kedah held under HS(D) 4370/89 (now known as Grant Registration No. 25972) together with a two-storey shophouse built on the said land bearing the address of No. 13, Taman Cekur Manis, 09600 Lunas, Kedah (hereinafter referred to as “the aid property”).

2. The High Court at Alor Setar has on 15.5.2011 pronounced the following orders in favour of the Respondent/Plaintiff:-

(a) Specific Performance of the said agreement;

(b) An order that at the refusal of the Appellant/Defendant to complete the said sale, the Registrar of the Alor Setar High Court be authorized to execute the documents for transfer to the Appellant/Defendant and cost to be taxed; and

(c) The Defendant’s Counter-claim be dismissed with cost to be taxed.

3. Prior to the signing of the said Sale and Purchase Agreement on the 19th July 2002, the Respondent/Plaintiff had at the material times been renting a double storey shophouse bearing the postal address of No. 13, Taman Cekur Manis, Lunas,Kedah situated on land known as PT No: 1233, Mukim Sungai Seluang, Mukim Sungai Seluang, Daerah Kulim, Kedah (hereinafter called the ‘property’) from the Appellant/Defendant since 19th April 1999 pursuant to a tenancy agreement dated 1.4.1999.

4. On 12.5.2002 a fire broke out at the said property wherein the ground floor of the said property was destroyed by the fire.

5. As a result of the fire, the Respondent/Plaintiff could not continue its business at the said property. Since the tyres, batteries, tyre rims, lubricants and spare parts which were kept on the upper floor of the said property were destroyed in the fire, the said stocks were kept at the said location temporarily until the Respondent/Plaintiff could continue with his business. The Respondent/Plaintiff was allowed to

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continue his occupation of the said property because the upper floor was still in good condition.

6. The said tenancy was terminated by consent on 19.7.2002, i.e. the date the said Sale and Purchase Agreement was signed between the Respondent/Plaintiff and the Appellant/Defendant since the Appellant/Defendant had agreed to sell the said property to the Respondent/Plaintiff after the Appellant/Defendant’s second visit to the said property. This incident took place one week after the fire outbreak wherein the Respondent/Plaintiff had asked the Appellant/Defendant whether he would like to sell the said property to the Respondent/Plaintiff since the Respondent/Plaintiff’s business was the only bread and butter of the Respondent/Plaintiff’s family and as such, the Respondent/Plaintiff needed to commence his business as soon as possible,

7. On 19.7.2002 a Sale and Purchase Agreement (hereinafter called ‘the said Agreement’) was signed between the Respondent/Plaintiff and the Appellant/Defendant whereby the Respondent/Plaintiff agreed to purchase and the Appellant/Defendant agreed to sell the said property at a purchase price of RM270,000.00 and the tenancy agreement was terminated by consent and the deposit for the tenancy was refunded on the same date as the signing date for the said Agreement.

8. It was a term of the said Agreement that the Respondent/Plaintiff should pay a sum of RM27,000.00 at the time of signing the said Agreement by way of a deposit to the Appellant/Defendant and the balance of the purchase price was required to be paid within 4 months from the date of the said Agreement and if the balance could not be paid witih the 4 months then an extension of time of 1 month would be provided for with interest accruing at the rate of 6% per annum calculated on daily basis would be imposed on the sum due and payable.

9. At the time of the signing of the said Agreement on 19.7.2002, the Respondent/Plaintiff has paid to the Appellant/Defendant a sum of RM27,000.00 as receipt of deposit which was also admitted by the Appellant/Defendant.

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10. The Respondent/Plaintiff had obtained a loan for a sum of RM230,000.00 from OCBC Bank (Malaysia) to fund the purchase of the said property and the differential sum between the balance purchase price and the loan sum i.e. about RM13,000.00 was differential sum to the Appellant/Defendant’s solicitors upon receipt of the said Transfer Form (in form 14A National Land Code) duly executed by the Appellant/Defendant or upon receipt of the undertaking from the Appellant/Defendant’s Solicitors that the Transfer Form (in form 14A National Land Code) which had been duly executed by the Appellant/Defendant would be given to the Respondent/Plaintiff’s Solicitors for purposes of adjudication.

11. Despite numerous request forwarded by the Respondent/Plaintiff’s Solicitors the Appellant/Defendant had refused and until to date refused to take any steps to complete the said sale.

12. The Respondent/Plaintiff was and is at all material times ready and willing to complete its obligations pursuant to the said Sale and Purchase Agreement.

13. According to Mr. Venugopalan, solicitor who acted for the Respondent/Plaintiff in drawing up the Agreement confirmed that part of the deposit of RM3,000.00 was paid to the Appellant/Defendant on the 7.6.2002 at the Appellant/Defendant’s clinic and the balance of RM24,000.00 was to be paid on 14.7.2002. Also, Mr. Venugopalan has confirmed that the said Sale and Purchase Agreement dated 19.7.2002 is not conditional upon the Appellant’s total insurance claim.

14. The Respondent/Plaintiff and the Appellant/Defendant had agreed orally prior to the signing of the said agreement on 7.6.2002 that the Respondent/Plaintiff will do all the repair works on the said property. This was due to the fact that the Respondent/Plaintiff would be unable to occupy the said property without any repair works being done on the said property. Further, the Respondent/Plaintiff had purchased the said property for purposes of expanding his business. The Respondent/Plaintiff was to bear the expenses of the repair and landlord has no objection to the repairs. The letter of 22.7.2002 objecting to the repair was only received on 29.9.2002 wherein by then the substantial repair

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has been completed as it was completed by 1st or 2nd August 2002.

15. At the time of signing of the said agreement on 19.7.2002, the Appellant/Defendant had informed the Respondent/Plaintiff to stop all the repair works on the said property for three (3) days as the representatives of the insurance company would be visiting the said property to inspect the extent of the damage due to the fire outbreak. The Respondent/Plaintiff had waited for the visitation by the representatives of the insurance company would be visiting the said property to inspect the extent of the damage due to the fire outbreak. The Respondent/Plaintiff had waited for the visitation by the representatives of the insurance company until 24.6.2002. On 25.6.2002, the Respondent/Plaintiff had continued the repair works on the said property. The Respondent/Plaintiff had also spent a sum of RM84,342.00 for the repair works and this is well within the knowledge of the Appellant/Defendant. The repair works is important to secure the stocks of the goods in the said building.

16. The Respondent/Plaintiff’s case is that the terms of the Agreement is clear and unconditional and it was the Respondent/Plaintiff’s case that three (3) important clauses in the said agreements showed that in (a) clause (iv) that the Respondent/Plaintiff was fully aware that the property had been badly damaged in a fire on 12.5.2002 and was purchasing it with full knowledge thereof; (b) clause (v) all expenses and costs for renovations and repairing the building erected on the said property shall be borne solely by the Purchaser (Respondent/Plaintiff) and (c) clause (vi) that the Purchaser shall not have any claim to the monies paid by any insurance company to the Vendor (Appellant/Defendant) in respect of the damage caused to the building erected upon the said property by the fire of 12.5.2002. There is no clause which exists to state that the Agreement is conditional.

17. The Appellant/Defendant has unlawfully terminated the Agreement which has caused the Respondent/Plaintiff had filed a Suit in the High Court of Alor Setar for:-

(a) Specific Performance of the said agreement;(b) An order that at the refusal of the Appellant/Defendant

to complete the said sale, the Registrar of the Alor

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Setar High Court be authorized to execute the documents for transfer to the Appellant/Defendant and cost to be taxed; and

(c) The Defendant’s Counter-claim be dismissed with cost to be taxed.

THE APPELLANT/DEFENDANT’S CASE

1. Based on the totality of the evidence shows that the said Agreement signed on 19.7.2002 was only conditional agreement.

2. There was a collateral oral agreement between the Parties that the agreement will only take effect after the Appellant/Defendant’s insurance claim for total loss was settled.

3. The said Agreement was terminated on 7.8.2002 as the Respondent/Plaintiff was not ready and willing to complete the agreement.

4. The loan was only granted in October 2002, even if the agreement had not been terminated.

5. The evidence shows that the Appellant/Defendant never gave permission to the Respondent/Plaintiff to renovate or repair the said property after the fire.

C. THE EVIDENCE

The Respondent/Plaintiff had called 7 witnesses to give evidence for and on its behalf, namely:

a. Mr. Lim Eng Huat (PW1)(The Respondent/Plaintiff)[Refer to pages 301 – 323 Rekod Rayuan [Bahagian B];

b. Mr. Venugopalan a/l K. Vasudevan Nair (PW2)(The former solicitor for the Respondent/Plaintiff)[Refer to pages 324 – 344 Rekod Rayuan [Bahagian B];

c. Tan Gaik Eng (PW3)(The Valuer from Messrs. G.E. Tan & Associates)[Refer to pages 345 – 347 Rekod Rayuan [Bahagian B];

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d. Yeoh Pee Tuan (PW4)(Diretor of Wah Wah Electrical Sdn Bhd)[Refer to pages 160 – 161 Rekod Rayuan [Bahagian B];

e. Wong Bee Choo (PW5)(The Respondent/Plaintiff’s wife)[Refer to pages 348 – 362 Rekod Rayuan [Bahagian B];

f. Tai Soi Siang (PW6)(The owner of Thye Ho Tukang Tin)[Refer to pages 363 – 364 Rekod Rayuan [Bahagian B]; and

g. Cheah Chin Huat (PW7)(The Engineer from Messrs. Sri & Sri Associates)[Refer to pages 365 – 377 Rekod Rayuan [Bahagian B].

The Appellant/Defendant called 3 witnesses, namely:

a. Mr. Srinivasan a/l Muthu Palaniappan (DW1)(The Engineer from Messrs. Sri & Sri Associates)[Refer to pages 205 – 243 Rekod Rayuan [Bahagian B];

b. Dr. Balakrishnan a/l Shanmugam (DW2)(the owner of Appellant/Defendant company)[Refer to pages 378 – 390 Rekod Rayuan [Bahagian B]; and

c. Mr. Jayabalan a/l Nadarajah (DW3)(the former solicitor for the Appellant/Defendant)[Refer to pages 290 – 294 Rekod Rayuan [Bahagian B].

D. THE FINDINGS OF THE COURT [Refer to Pages 19 – 27 of Rekod Rayuan [Bahagian A]

The Judgment was pronounced on 15.5.2011 upon a full course of a trial which was held for 11 days in favour of the Respondent/Plaintiff wherein the Learned High Court Judge has made the following finding:-

“ a) Whether the saud S & P agreement is conditional upon insurance claim by the Defendant:

Upon reading the S & P in particular in clause 17(iv), (v) and (vi) respectively, the said Agreement was unconditional upon insurance claim by Defendant. The Court was of the view that if the said agreement was to be conditional upon insurance claim then the said agreement must signify the intention of the Parties to

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the Agreement. Clause 17(iv), (v) and (vi) provides inter alia that the Purchaser (Plaintiff) shall be responsible for the repair works abd have no claim to the insurance monies.

The Court was of the view that there is evidence before the Court that the damage to the said property was only 50% as per Bomba Report in para 2.7 ‘peratusan kemusnahan 50%’. Regardless of the claim by the Defendant for total loss of the said property, the Court was of the view based on P51 the damage to the said building was only 50% and not a total loss.

The Court observed that it was only in the 2nd Receipt for the sum of RM24,000 dated 14th July 2002 that the Defendant had written on it ‘down payment for only proposed sale of 13A, Taman Cekur Manis, Lunas subject to confirmation of sale following insurance claim.’ According to the Plaintiff there was not a single letter sent by the Plaintiff to the Defendant objecting t the contents in the said receipt (exhibit P15A).

But this written note was not reflective of Clause 17(iv),(v) and (vi) of the Agreement respectively. For all intent and purpose the Agreement should be the determining document which governs the contractual relationship between the Plaintiff and the Defendant. The repairs done to the said property was premised on an earlier permission by the Defendant and in reliance to Clause 17(iv),(v)(vi) of the Agreement.

The Plaintiff had also called as their witness SP7 a consultant engineer who had inspected the property and had prepared a report which was tendered and marked as exhibit P58. The witness said that exhibit P58 was prepared some 8 years later after the fire broke out and further said that despite him not witnessing the repair works personally, the repairs were done properly and agreed that the property was structurally safe. The witness saw the actual weight of the property through visual live inspection. The Court accepted the structural report exhibit P58 prepared some 8 years after the fire broke out as signifying that the property in question was structurally safe for occupation by the Plaintiff to carry out its tyre business.

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The Court finds the report by SD1 tendered as exhibit D61 as not reflective of the actual structural damage to the said property despite the detail description of the damage cause by fire. Contrary to its report it was difficult to reconcile with the fact that the said property still remain intact until the date of the trial and the Plaintiff was still carrying on its tyre business and the Defendant continued to receive rentals albeit on a month to month basis. Ironically, SD1 still standby his report D61 that the said property should be demolished as it was not safe for human habitation.”

b) Was the termination by the Defendant lawful?

Defendant submits that it was lawful:

Not safe for human habitation and the sale was conditional and subjected to insurance total loss claim. Repairs done had jeopardized the insurance claim that the said property was considered a total loss and had to be demolished. Further, the Plaintiff was not ‘willing and ready’ to perform its part of the contract.

The Court agrees with the Plaintiff that the termination was unlawful as the Defendant had succeeded in his insurance claim. The said property had withstand the fire and remained intact and the Defendant over the period had been collecting rental in the sum of RM150,000.00. The Defendant cannot ‘blow hot and cold’ to say that the said property was total loss and at the same time receiving rentals from the Plaintiff albeit on a monthly basis. The Court was of the view that SD2, the Defendant was not truthful witness when he said in cross-examination that the Agreement was signed but it was to be kept in abeyance. This is an important clause why did the Defendant not include it in the Agreement but rather stress that it was an understanding between the parties. There was also no clause in the Agreement that upon signing, the Plaintiff was not to renovate the said property but the Defendant kept stressing that it was a mutual understanding between him and Mr. Lim (Plaintiff). The Court once more questioned the motice of the Defendant when it could have easily be included

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as a clause in the Agreement that Mr. Lim was prohibited or not allowed to carry out any renovations prior to the approval of the Defendant’s total loss insurance claim but had included a clause that any costs of renovation or repair done would be borne by the Plaintiff. It could have easily be drafted in such a way in that ‘The Purchaser shall not be allowed to carry out any renovations or repair works until the Vendor’s total loss insurance claim is settled and any costs thereof shall be wholly borne by the Purchaser’. This in the Court’s view would have easily saved a day in Court.”

D. THE CASES PERTAINING TO THE APPELLATE COURT’S INTEFERENCE WITH THE DECISION OF THE HIGH COURT ON APPEAL

1. It is trite law that to warrant the appellate interference, it is incumbent upon the Appellant/Defendant to demonstrate that the Learned Trial Judge at the Alor Setar High Court was plainly wrong based on the findings of fact and upon close scrutiny of the demeanour of the witnesses presented before His Lordship, that there is a serious misdirection on the part of the Learned High Court Judge as to the order granted by His Lordship which leads to a miscarriage or failure of justice.

2. As such, the Appellate Court should be slow in interfering with the decision of the trial judge on the findings of facts who had the advantage of watching the demeanour of the witnesses during the trial unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain and justify the Learned Trial Judge’s decision made on 15.5.2011.

Refer to:-

1. OSK Securities Bhd v. Probo Pacific Leasing Pte Ltd & Anor [2009] 3 MLJ 712 [marked as “TAB-A’ of the Respondent’s Bundle of Authorities]:-

“[42] To warrant appellate interference it was incumbent upon the appellant have to demonstrate that the High Court was 'plainly wrong'. This appeal turns upon question of

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facts based on the credibility of the witnesses. After careful consideration of the reasoning of the trial judge in arriving at his findings and conclusion, it is clear that he had taken into consideration all relevant matters and did not take into account irrelevant ones. The reasoning of the trial judge in arriving at the findings and the conclusions were cogent and in accordance with the evidence before him. Having had the audio-visual advantage of having seen and heard the witnesses, considered the evidence and the probabilities of the case taken as a whole, as well as the documents presented, clearly entitled him to arrive at the conclusions he did. I am in agreement with reasoning and conclusion that the probabilities of the case points in favour of a three year option period, and not a three day option period.”

2. Lam Soon Oil & Soap Manufacturing Ltd v. Impex Syndicate Ltd [1964] 30 MLJ 176 at page 177 [marked “TAB-B” of the Respondent’s Bundle of Authorities]:-

“ The appellants now seek to reverse the judgment of Ambrose J. I can do no better than to refer to a passage in the judgment of the Privy Council delivered on the 14th January 1964 in the Singapore case of Tay Kheng Hong v Heap Eng Moh Steamship Co Ltd [1964] MLJ 87 9192 for a statement of the principles upon which an appellate Court should act in reviewing the decision of a judge of first instance:

"There is a heavy onus on a party who seeks to displace the conclusion formed by the trial judge on questions of fact. The principles upon which an appellate court should act in reviewing the decision of a judge of first instance were stated by Lord Thankerton in Watt or Thomas v. Thomas: 'I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate

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court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.' Later his Lordship quoted with approval a passage from the speech of Lord Shaw in Clarke v. Edinburgh & District Tramways Co. Ltd.: 'In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I – who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case – in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.' Before the Court of Appeal in Singapore was entitled to reject the trial judge's estimate of the credibility of the appellant and Goh Leh they would have to be satisfied that the trial judge's view was plainly wrong and that any advantage which he enjoyed by having seen and heard the witnesses was not sufficient to explain his conclusion."

3. Datuk Syed Kechik Bin Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors and another appeal [1998] 2 MLJ 137 [marked as “TAB-C” of the Respondent’s Bundle of Authorities]:-

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“ Are we in those circumstances entitled to intervene and reverse his decision? I think not.

It has been repeatedly said that this court has no original discretion in an appeal of this nature. Its initial function on appeal is one of review only. It is only after an appellant demonstrates either a serious misdirection by the judge or that the judge has taken into account something that he should not, or that he has failed to take into account something he should have had regard to, or that his order amounts to a miscarriage or failure of justice, that this court would be entitled to intervene and exercise a discretion of its own.

Despite the very careful and lucid arguments of Mr Cherryman, I remain unconvinced that there has been a wrongful exercise of discretion by the judge in each of these cases. It is very sad that the defendants, indeed the plaintiffs, have to fight a battle so stale and so late in the day. But that unfortunately is not the fault of the plaintiffs as found by the learned judge. I realize that the findings of fact by the judge have been made on affidavit evidence but I can do no better than remind myself of the judgment of Raja Azlan Shah FJ (as he then was) in Samar bte Mansor v Mustafa Kamarul Ariffin [1974] 2 MLJ 71 where his Lordship said (at p 72):

… However much an appellate court may be in an equal position with the trial judge as to the drawing of inferences, it ought not to reverse the finding of fact unless it is convinced that it is wrong. It is not whether the inferences are right but whether an appellate court is convinced that they are wrong. If that finding is a view reasonably open on the evidence, it is not enough to warrant its reversal just because an appellate court would have come to a different view. Merely differing views do not establish that either view is wrong, but in balancing these two views an appellate court should give due weight to the nature of the fact

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as found by the trial judge. Thus Benmax v Austin Motor Co Ltd [1955] AC 370, is authority for the proposition that an appellate court is not bound by inferences of fact drawn by the trial judge which did not turn on the credibility of witnesses, seen and heard by him, that it may not examine the matter afresh.”

3. In light of the abovementioned authorities, it is humbly submitted by the Respondent/Plaintiff that the Judgment dated 15.5.2011 was pronounced upon close scrutiny and analysis of all the evidence produced by both the Appellant/Defendant and the Respondent/Plaintiff during a course of a full trial by the Learned High Court Judge of Alor Setar and for the This Honourable Court to reverse a decision of such a nature would not be an easy task provided a real cogent reason is shown to tamper with the decision and findings of the Learned High Court Judge wherein it can be shown that the said Judgment dated 15.5.2011 was erroneous in the eyes of the law which requires the intervention by This Honourable Court in the interest of justice.

E. THE REBUTTAL BY THE RESPONDENT/PLAINTIFF TOWARDS THE GROUNDS RAISED IN THE APPELLANT’S MEMORANDUM OF APPEAL.

1. That the Learned High Court Judge has erred in the eyes of law and fact when His Lordship has failed to consider the concept of “collateral contract” and failed to make a finding that there is a collateral contract between the parties that the agreement signed on 19.7.2002 will only take effect after the total loss insurance claim is approved [Ground 3 of the Memorandum of Appeal]

i. The terms of the Sale and Purchase Agreement dated 19.7.2002 inter alia are as follows:-

(a) Pursuant to the Second Schedule, Section 2(iii) of the Sale and Purchase Agreement, the Respondent/Plaintiff was required to pay the balance purchase price of a sum of RM243,000.00 before 19.11.2002. In the event the Respondent/Plaintiff failed to do so, the Appellant/Defendant would provide an extension of time

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of a month with the interest at the rate of 6% on the balance purchase price.

(b) Pursuant to Clause 17(i) of the said Sale and Purchase Agreement, time is of essence.

(c) Pursuant to Clause 17(iii) of the said Sale and Purchase Agreement, the Respondent/Plaintiff is entitled to claim for strict performance of the terms of the said Sale and Purchase Agreement by the Appellant/Defendant.

(d) Clauses 17(iv), 17(v) and 17(vi) were added by the Appellant/Defendant wherein pursuant to the said Clauses the said property was not fit for habitation or used for business purposes at that material time wherein any cost and expenses in repairing the said property should be borne by the Respondent/Plaintiff and that the Respondent/Plaintiff should not make any claim in respect of any monies paid by the insurance company in respect of the damage to the said property due to the fire outbreak on 12.5.2002.

(e) It is submitted that it is clear based on the terms of the said Sale and Purchase Agreement that the said Agreement cannot be conditional upon the insurance claim. Time is of essence in the said Sale and Purchase Agreement and also the Agreement will take effect from the date of signing not the date of stamping.

ii. It is to be noted that Mr. Venugopalan from Messrs. Dass, Jainab & associates was appointed by the Respondent/Plaintiff. Further, at the time of signing of the said Sale and Purchase Agreement dated 19.7.2002 which took place before solicitor Mr. Venugopalan, neither the Respondent/Plaintiff nor Mr. Venugopalan was informed by the Appellant/Defendant that the Sale and Purchase of the said property was subject to confirmation of sale following insurance claim. That is because the Respondent/Plaintiff had never agreed that it was subject to insurance claim.

iii. On 7.6.2002, a sum of RM3,000.00 was initially paid to the Appellant/Defendant wherein upon the payment of a sum of RM3,000.00, the Appellant/Defendant had issued a receipt dated 7.6.2002 to the Respondent/Plaintiff. Subsequent to

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that, on 14.7.2002, a sum of RM24,000.00 was paid to the Appellant/Defendant wherein in relation to that the Appellant/Defendant had issued a receipt dated 14.7.2002 to the Respondent/Plaintiff. The Appellant/Defendant at the time of issuance of the first receipt did not have any discussion with the Respondent/Plaintiff in respect of the insurance claim. The Respondent/Plaintiff has witnessed the receipt for a sum of RM3,000.00 but it did not contain any notes on insurance claim. When the second receipt dated 14.7.2002 was issued to the Respondent/Plaintiff, Appellant/Defendant had handwritten on insurance claim on the said second receipt unilaterally without the Respondent/Plaintiff’s consent.

iv. Despite the Respondent/Plaintiff’s non-agreement, the Appellant/Defendant had stated the sentence “subject to confirmation of sale following insurance claim”. At that material time the Respondent/Plaintiff only wanted the acknowledgement of receipt of the payment made by the Respondent/Plaintiff. However, it is to be noted the said condition was not agreed upon and was not included in the said Sale and Purchase Agreement.

v. In this respect, it is humbly submitted herein that the sentence “subject to confirmation of sale following insurance claim” was unilaterally included by Dr. S. Balakrishnan.

vi. He confirmed that Dr. S. Balakrishnan did not any time prior to the execution of the said Sale and Purchase Agreement inform Mr. Venugopalan that the purchase price of the said property was subjected to the Appellant/Defendant’s insurance claim against the shophouse which had suffered damage due to a fire outbreak.

vii. Mr. Venugopalan had also confirmed that the Respondent/Plaintiff and Mr. Venugopalan were there on 19.7.2002 to have the Respondent/Plaintiff and Dr. S. Balakrishnan execute the said Sale and Purchase Agreement upon the acceptance of the terms of the said Sale and Purchase Agreement by both parties.

viii. Mr. Venu also confirmed that he did not at any time assure Dr. S. Balakrishnan that the said Sale and Purchase Agreement would not be dated and stamped until the

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Appellant/Defendant’s insurance claim is resolved because the issue as to the Appellant/Defendant’s insurance claim did not arise during the previous discussions held between Dr. S. Balakrishnan and him nor at Klinik Bala prior to the execution of the said Sale and Purchase Agreement.

ix. Mr. Venu had stated that in the event the Appellant/Defendant had wanted to incorporate the insurance claim as part of the terms of the said Sale and Purchase Agreement prior to the execution of the said Sale and Purchase Agreement, he would have informed and deiscussed with the Plaintiff and the term would only be incorporated upon the agreement advanced by the Respondent/Plaintiff to Mr. Venu.

x. Mr. Venugopalan had confirmed once again that the Appellant/Defendant’s insurance claim was neither a pre-condition nor an implied term in the said Sale and Purchase Agreement between the Respondent/Plaintiff and the Appellant/Defendant.

xi. It is submitted that this is consistent with the terms and condition of the said Sale and Purchase Agreement where it is not conditional upon the insurance claim.

xii. Furthermore, the Learned High Court Judge has made a finding that that upon reading the S & P in particular in Clause 17(iv),(v) and (iv) respectively, the said Agreement was unconditional upon insurance claim by the Defendant. The Court was of the view that if the said agreement was to be conditional upon insurance claim then the said agreement must signify the intention of the Parties to the Agreement.

xiii. The Court in its finding has also observed that it was only in the 2nd receipt for the sum of RM24,000 dated the 14th July 2002 that the Appellant/Defendant had written on it ‘down payment for only proposed sale of 13A, Taman Chekur Manis, Lunas subject to confirmation of sale following insurance claim’. According to the Respondent/Plaintiff there was not a single letter sent by the Respondent/Plaintiff to the Appellant/Defendant objecting to the contents in the said receipt (exhibit P15A).

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xiv. But this written note was not reflective of Clause 17(iv),(v)(vi) of the Agreement respectively. For all intent and purpose the Agreement should be the determining document which governs the contractual relationship between the Respondent/Plaintiff and the Appellant/Defendant.

xv. In light of this, there is no issue of collateral contract as alleged by the Appellant/Defendant which exist in respect of the Agreement made between the Appellant/Defendant and the Respondent/Plaintiff.

2. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship failed to make a finding that the Agreement dated 19.7.2002 was only a proposed agreement subject to the Appellant/Defendant’s claim for total loss insurance claim being allowed [Ground 4 of the Memorandum of Appeal]

a. “Contents of exhibit D15A” [Ground 4(i) of the Memorandum of Appeal]

i. On 7.6.2002, a sum of RM3,000.00 was initially paid to the Appellant/Defendant wherein upon the payment of a sum of RM3,000.00, the Appellant/Defendant had issued a receipt dated 7.6.2002 to the Respondent/Plaintiff. Subsequent to that, on 14.7.2002, a sum of RM24,000.00 was paid to the Appellant/Defendant wherein in relation to that the Appellant/Defendant had issued a receipt dated 14.7.2002 to the Respondent/Plaintiff. The Appellant/Defendant at the time of issuance of the first receipt did not have any discussion with the Respondent/Plaintiff in respect of the insurance claim. The Respondent/Plaintiff has witnessed the receipt for a sum of RM3,000.00 but it did not contain any notes on insurance claim. When the second receipt dated 14.7.2002 was issued to the Respondent/Plaintiff, Appellant/Defendant had handwritten on insurance claim on the said second receipt unilaterally without the Respondent/Plaintiff’s consent.

ii. Despite the Respondent/Plaintiff’s non-agreement, the Appellant/Defendant had stated the sentence “subject to confirmation of sale following insurance claim”. At that material time the Respondent/Plaintiff only wanted the acknowledgement of receipt of the payment made by the Respondent/Plaintiff. However, it is to be noted the said

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condition was not agreed upon and was not included in the said Sale and Purchase Agreement.

iii. Further, it is also humbly submitted that the Learned High Court Judge has made a specific finding on this issue wherein it was stated as follows:-

“ The Court observed that it was obly in the 2nd receipt for the sum of RM24,000.00 dated 14th July 2002 that the defendant had written on it ‘down payment for only proposed sale of 13A, Taman Chekur Manis, Lunas subject to confirmation of sale following insurance claim’. According to the Plaintiff there was not a single letter sent by the Plaintiff to the Defendant objecting to the contents in the said receipt (exhibit P15A).

But this written note was not reflective of Clause 17(iv)(v)(vi) of the Agreement respectively. For all intent and purpose the Agreement should be determining document which governs the contractual relationship between the Plaintiff and the Defendant.”

iv. In light of this, it is humbly submitted herein that the Appellant/Defendant’s ground in its Memorandum of Appeal should fail on the basis that there is no misdirection as to the facts and law.

b. The fact that the parties agree to defer the dating/stamping of the agreement [Ground 4(ii) of the Memorandum of Appeal]

i. According to the testimony provided by the Plaintiff, Lim Eng Huat [SP1], it was agreed between parties on 19.7.2002 that the said Sale and Purchase Agreement dated 19.7.2002 was to be stamped after 24.7.2002 as the Respondent/Plaintiff was informed by the Appellant/Defendant that the adjuster from the insurance company would be conducting a final inspection on the said property on 24.7.2002 and as such the said Sale and Purchase Agreement could be stamped after 24.7.2002.

ii. This was further confirmed by Mr. Venugopalan in his testimony that on 19.7.2002, Dr. S. Balakrishman had requested him to stamp the said Sale and Purchase Agreement after 24.7.2002 because according to Dr. S. Balakrishnan, the Adjuster from the insurance company will be inspecting

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the shophouse which was damages due to a fire on 12.5.2002 and the Respondent/Plaintiff had also agreed to have the said Sale and Purchase Agreement stamped subsequent to that date.

iii. Mr. Venu also confirmed that he did not at any time assure Dr. S. Balakrishnan that the said Sale and Purchase Agreement would not be dated and stamped until the Appellant/Defendant’s insurance claim is resolved because the issue as to the Appellant/Defendant’s insurance claim did not arise during the previous discussions held between Dr. S. Balakrishnan and him nor at Klinik Bala prior to the execution of the said Sale and Purchase Agreement.

iv. In light of the above, it is humbly submitted that the Learned High Court Judge has made a finding that if indeed the Sale and Purchase Agreement would be subject to the insurance loss claim by the Appellant/Defendant, then the said agreement must signify the intention of the Parties to the Agreement. The Learned High Court Judge has also made a finding that for all intent and purposes the Agreement should be the determining document which governs the contractual relationship between the Plaintiff and the Defendant.

v. Therefore, the Appellant/Defendant’s ground as stated in the Memorandum should fail based on the finding made by the Learned High Court Judge and the evidence provided by the Plaintiff and Mr. Venugopalan, the Solicitor for both the Appellant/Defendant and the Respondent/Defendant.

c. The current conduct of the Respondent [The Allegation that the Respondent/Plaintiff is not ready and willing to perform][Ground 4(iii) of the Memorandum of Appeal].

i. It is stated by the Appellant/Defendant in its Memorandum of Appeal that the Learned High Court Judge has failed to take into account into account the current position of the Respondent/Plaintiff as at the date of the hearing.

ii. However, according to the Plaintiff in its testimony has stated that he had given effect to the terms of the said Sale and Purchase Agreement as follows:-

(a) The Respondent/Plaintiff had made an application for a bank loan wherein the letters dated 9.10.2002, OCBC

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Bank (Malaysia) Berhad had approved the loan for a sum of RM230,000.00 to fund the purchase of the said property.

(b) It is submitted that if the repair are fully objected to by the Appellant/Defendant, then he should have expressed his objection in the said Sale and Purchase Agreement. Further, he would nor have allowed the Respondent/Plaintiff to be there and would have stopped collecting the rental and immediately issue eviction against the Respondent/Plaintiff. He would also have informed the Majlis Perbandaran Kulim to stop the Appellant/Defendant from continuing to stay there and also to stop allowing the Appellant/Defendant to renew the licence as without the landlord’s approval, the licence cannot renewed. He cannot be blowing hot and cold by saying on one hand that repair is illegal and on the other hand collect rental and did not allow the repair and allow the Respondent/Plaintiff to be there.

(c) In fact, on 24.10.2002, the Respondent/Plaintiff had paid a sum of RM13,000.00 which is the difference between the balance purchase price (RM243,000.00) and the loan sum (RM230,000.00) which was approved by OCBC Bank (Malaysia) Berhad to the Respondent/Plaintiff. The Respondent/Plaintiff’s solicitor had issued the receipt dated 24.10.2002 as a proof of payment. the Respondent. Plaintiff had also paid a sum of RM27,000.00 being the deposit sum out of the full purchase price i.e. RM27,000.00.

(d) The said tenancy was terminated on 19.7.2002, i.e. the date the parties had signed the said Sale and Purchase Agreement. If the said Sale and Purchase Agreement was conditional, then the Appellant/Defendant would not have terminated the said Tenancy Agreement. The Respondent/Plaintiff had instructed his solicitor to stamp the said Sale and Purchase Agreement.

(e) A copy of the CKHT2, the title deed in respect of the said property as well as the said Sale and Purchase Agreement was produced to the Jabatan Hasil Dalam Negeri. It is pertinent to note that this clearly shows that the Respondent/Plaintiff was ready and willing at all material times to continue with the said Sale and Purchase Agreement. The Respondent/Plaintiff had also

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not accepted the repudiation of the Appellant/Defendant and had challenged the unlawful termination and treated the said Sale and Purchase Agreement as still subsisting and as at the date of the hearing, both parties are able to perform the contract.

iii. In light of the above evidence, it is humbly submitted that the Appellant/Defendant’s ground in the Memorandum of Appeal should fail herein on the basis that the Respondent/Plaintiff have taken all the necessary steps to perform its obligations pursuant to the said Agreement but it was the Appellant/Defendant who has failed to undertake its part of the obligation pursuant to the Agreement when it failed to return the duly signed copies of the Transfer form 14A which was forward to them on 2.9.2002 in order for the adjudication in respect of the said property to take place and for the loan to be released in accordance with the Agreement.

iv. However, the Appellant/Defendant did not return the said Form 14A. Thus, on 30.9.2002, the Respondent/Plaintiff’s solicitor had sent a reminder to the Appellant/Defendant’s solicitor and had requested for the Form 14A be signed by the Appellant/Defendant by the Appellant/Defendant had failed to do so.

v. Therefore, it is humbly submitted that the Learned High Court Judge has not erred in his finding based on facts and law.

d. Exhibit D63 – The Witness Statement of Dr. S. Balakrishnan [Ground 4(iv) of the Memorandum of Appeal]

i. It is humbly submitted therein that the Learned High Court Judge has made a specific finding on Dr. S. Balakrishnan [SD2] that Dr. S. Balakrishnan was not a truthful witness when he said in cross-examination that the Agreement was signed but it was kept in abeyance.

ii. This is on the basis that such clause as proposed by the Dr. S. Balakrishnan was not included in the Agreement despite it being an important Clause but instead Dr. S. Balakrishnan had stressed that it was an understanding between the parties.

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iii. The Court in its finding questioned the motive of the Appellant/Defendant when it could have easily be included as a clause in the Agreement that Mr. Lim was prohibited or not allowed to carry out any renovations prior to the approval of the Defendant’s total loss insurance claim but had included a clause that any costs of renovation or repair done would be borne by the Plaintiff. It could have easily be drafted in such a way in that ‘The Purchaser shall not be allowed to carry out any renovations or repair works until the Vendor’s total loss insurance claim is settled and any costs thereof shall be wholly borne by the Purchaser’.

iv. In light of the above, the ground in the Memorandum of Appeal should fail on the basis that the Learned High Court Judge has not erred in its finding in respect of the Witness Statement of Dr. S. Balakrishnan concerned.

3. The Learned High Court Judge has erred in the eyes of law and fact in failing to make a finding that the whole evidence is reflective of the fact that the agreement which was signed on 19.7.2002 was to be kept in abeyance until the total loss insurance claim was approved [Ground 5 of Memorandum of Appeal]

i. It was contended by the Appellant/Defendant that the Learned High Court Judge of Alor Setar has failed to make a finding that the agreement was to be kept in abeyance until the total loss insurance claim was approved.

ii. However, it is submitted herein that the Learned High Court Judge has made a specific finding upon close scrutiny of the evidence provided by the Plaintiff and the Plaintiff’s witness that the Agreement was unconditional upon insurance claim by the Appellant/Defendant and the Court was of the view that if the said agreement was to be conditional upon insurance claim then the said agreement must signify the intention of the Parties to the Agreement. Clause 17(iv),(v) and provide inter alia that the Purchaser (Plaintiff) shall be responsible for the repair works and have no claim to the insurance monies.

iii. Furthermore, it is also submitted that Dr. S. Balakrishnan further admitted that he got his insurance claim after 8 years. He had relied on a full claim and on the information by the adjuster that it was a total loss. The reason why it total 8 years to get the total loss was because the

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Respondent/Plaintiff had tampered with the said building. The Respondent/Plaintiff had been told not to renovate, according to him but in spite of the warning provided the Respondent/Plaintiff had set up a tent outside the building and continued business. It is submitted that PW4 could not have caused him this for if that was the case, he would not have got his claim. Furthermore, since he has got his claim, it is no longer open to him to approbate and reprobate.

iv. Furthermore, the Learned High Court Judge has made a finding that Dr. S. Balakrishnan [SD2] was not a truthful witness when he said in cross-examination that the Agreement was signed but it was to be kept in abeyance. His Lordship further added that this is an important clause and it is doubtful as to why the Appellant/Defendant did not include it in the Agreement but rather stressed that it was an understanding between the parties.

v. In light of the above, it is humbly submitted that the this ground is unsustainable since there is a specific finding that Dr. S. Balakrishnan was not truthful in his witness statement when he said that the Agreement was signed but was kept in abeyance.

4. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship has failed to make a finding that on or about 19.7.2002 there was no concluded contract contact or a binding contract between the Appellant/Defendant and the Respondent/Plaintiff in respect of the sale of the property concerned [Ground 6 of the Memorandum of Appeal].

i. It is the contention by the Appellant/Defendant that the Learned High Court Judge has erred in failing to make a finding that there was no concluded contract or a binding contract on or about 19.7.2002 between the Appellant/Defendant and the Respondent/Plaintiff.

ii. However, Mr. Venugopalan had also confirmed that the Respondent/Plaintiff and Mr. Venugopalan were there on 19.7.2002 to have the Respondent/Plaintiff and Dr. S. Balakrishnan execute the said Sale and Purchase Agreement upon the acceptance of the terms of the said Sale and Purchase Agreement by both parties.

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iii. The said tenancy was terminated on 19.7.2002, i.e. the date the parties had signed the said Sale and Purchase Agreement. If the said Sale and Purchase Agreement was conditional, then the Appellant/Defendant would not have terminated the said Tenancy Agreement. The Respondent/Plaintiff had instructed his solicitor to stamp the said Sale and Purchase Agreement.

iv. Furthermore, the Learned High Court Judge has also made a finding that for all intent and purpose the Agreement should be the determining document which governs the contractual relationship between the Respondent/Plaintiff and the Appellant/Defendant.

v. In light of the above, it is humbly submitted that the ground in the Memorandum of Appeal is unsustainable.

5. The Learned High Court Judge has failed in the eyes of law and fact in failing to make a finding that the Respondent/Plaintiff has failed to comply with Paragraph (a) of the Fourth Schedule and/or the conveyancing practice of executing the transfer form in escrow and giving written notice of taking a loan [Ground 7 of the Memorandum of Appeal]

i. It was contended by the Appellant/Defendant that the Learned High Court Judge has failed to take into account the Respondent/ Plaintiff’s failure to take into account the failure of complying with the conveyancing practice of executing the transfer form in escrow and giving written notice of taking a loan.

ii. However, it is submitted herein based on the evidence provided by Mr. Venugopalan that the Transfer Form 14A could not be signed by the Appellant/Defendant on 19.7.2002 because the Appellant/Defendant being a Company needed a common seal and another co-director or Company Secretary to execute the said Sale and Purchase Agreement. Mr. Venugopalan had also confirmed that he had subsequently sent the Transfer form 14A for execution to the Appellant/Defendant’s solicitor, Messrs. J.Balan & Co. vide his letter dated 4.9.2002.

iii. Messrs. Dass Jainab & Associates had written a letter dated 29.10.2002 to Messrs. J. Balan & Co. stating that the Respondent/Plaintiff had on 19.7.2002 entered into a Sale

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and Purchase Agreement with the Appellant/Defendant to purchase the said property for a price of RM270,000.00. Mr. Venugopalan had also stated that the Respondent/Plaintiff had paid a deposit to the Appellant/Defendant amounting to RM27,000.00 on 19.7.2002 and that the Respondent/Plaintiff had obtained a bank loan from OCBC Bank (Malaysia) Berhad for RM230,000.00 to finance the purchase of the said property. Further the solicitors for the Appellant/Defendant were informed that the Respondent/Plaintiff had deposited the differential sum between the balance purchase price and the loan sum amounting to RM13,000.00 with Messrs. Dass Jainab & Associates.

iv. Further, Mr. Venugopalan had also requested for the duly executed Transfer Form 14A in order to send the forms for adjudication and that Respondent/Plaintiff had in his possession the Borang Seksyen 5 PDS 15. The Solicitors were also informed that the differential sum of RM13,000.00 would be forwards to the Appellant/Defendant upon receipt of the duly executed Transfer Form 14A as instructed by the Respondent/Plaintiff and that the Respondent/Plai9ntiff would proceed for specific performance of the said Agreement in the event there is a failure on the part of the Appellant/Defendant to send the duly executed Transfer Form 14A within 7 days receipt of the letter dated 29.10.2002.

iii. In light of these, it is humbly submitted herein that the Respondent/Plaintiff has not failed to execute the transfer form in escrow and giving written notice of taking a loan and that all the conveyancing practice has been complied with.

6. The Learned High Court Judge has erred in the eyes of law and fact in not making a finding that at all material times, The Respondent/Plaintiff is not ready and willing to complete the said agreement and that the Respondent has clearly proven its inability to complete the sale on or before 19.11.2002 and that until the Respondent/Plaintiff files a claim in Court, the Respondent/Plaintiff is deemed to not have settled and/or tendered the balance purchase price under the agreement dated 19.7.2002 {Ground 8 and 9 of the Memorandum of Appeal]

i. It is contended by the Appellant/Defendant that the Learned high Court Judge has failed to appreciate the fact that the Respondent/Plaintiff has failed to complete the sale on or

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before 19.11.2002 thus thereby failing to complete the sale as a whole.

ii. However, based on the evidence provided by the Respondent/Plaintiff, Lim Eng Huat, on 2.9.2002, the Respondent/Plaintiff was informed by his solicitor of the Appellant/Defendant’s intention to terminate the said Sale and Purchase Agreement and had attempted to return the deposit sum of RM27,000.00 to the Respondent/Plaintiff’s solicitor wherein the Respondent/Plaintiff’s solicitor had under the Respondent/Plaintiff’s instruction returned the sum of RM27,000.00 to the Appellant/Defendant’s solicitor at that material time i.e. Messrs. J. Balan & Co. that the Respondent/Plaintiff had arranged the bank loan to fund the purchase of the said property. At the same time, the Respondent/Plaintiff’s solicitor had also sent Form 14A to the Appellant/Defendant to be signed by the Appellant/Defendant in order for the adjudication in respect of the said property to take place.

iii. However, the Appellant/Defendant did not return the said Form 14A. Thus, on 30.9.2002, the Respondent/Plaintiff’s solicitor had sent a reminder to the Appellant/Defendant’s solicitor and had requested for the Form 14A be signed by the Appellant/Defendant by the Appellant/Defendant had failed to do so.

iv. Based on the evidence provided by Lim Eng Huat, the Respondent/Plaintiff, it is humbly submitted that the Respondent/Plaintiff had given effect to the terms of the said Sale and Purchase Agreement as follows:-

(a) The Respondent/Plaintiff had made an application for a bank loan wherein the letters dated 9.10.2002, OCBC Bank (Malaysia) Berhad had approved the loan for a sum of RM230,000.00 to fund the purchase of the said property. The loan could not be released because the Appellant/Defendant refused to sign the Transfer Form 14A to comply with the requirements for the release of the loan.

(b) In fact, on 24.10.2002, the Respondent/Plaintiff had paid a sum of RM13,000.00 which is the difference between the balance purchase price (RM243,000.00) and the loan sum (RM230,000.00) which was approved by OCBC

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Bank (Malaysia) Berhad to the Respondent/Plaintiff. The Respondent/Plaintiff’s solicitor had issued the receipt dated 24.10.2002 as a proof of payment. The Respondent. Plaintiff had also paid a sum of RM27,000.00 being the deposit sum out of the full purchase price i.e. RM27,000.00.

(c) The said tenancy was terminated on 19.7.2002, i.e. the date the parties had signed the said Sale and Purchase Agreement. If the said Sale and Purchase Agreement was conditional, then the Appellant/Defendant would not have terminated the said Tenancy Agreement. The Respondent/Plaintiff had instructed his solicitor to stamp the said Sale and Purchase Agreement.

(d) A copy of the CKHT2, the title deed in respect of the said property as well as the said Sale and Purchase Agreement was produced to the Jabatan Hasil Dalam Negeri. It is pertinent to note that this clearly shows that the Respondent/Plaintiff was ready and willing at all material times to continue with the said Sale and Purchase Agreement. The Respondent/Plaintiff had also not accepted the repudiation of the Appellant/Defendant and had challenged the unlawful termination and treated the said Sale and Purchase Agreement as still subsisting and as at today, both parties are able to perform the contract.

v. However, based on the evidence provided by Mr. Venugopalan, Messrs. Dass Jainab & Associates had written a letter dated 29.10.2002 to Messrs. J. Balan & Co. stating that the Respondent/Plaintiff had on 19.7.2002 entered into a Sale and Purchase Agreement with the Appellant/Defendant to purchase the said property for a price of RM270,000.00. Mr. Venugopalan had also stated that the Respondent/Plaintiff had paid a deposit to the Appellant/Defendant amounting to RM27,000.00 on 19.7.2002 and that the Respondent/Plaintiff had obtained a bank loan from OCBC Bank (Malaysia) Berhad for RM230,000.00 to finance the purchase of the said property. Further the solicitors for the Appellant/Defendant were informed that the Respondent/Plaintiff had deposited the differential sum between the balance purchase price and the loan sum amounting to RM13,000.00 with Messrs. Dass Jainab & Associates.

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vi. Further, Mr. Venugopalan had also requested for the duly executed Transfer Form 14A in order to send the forms for adjudication and that Respondent/Plaintiff had in his possession the Borang Seksyen 5 PDS 15. The Solicitors were also informed that the differential sum of RM13,000.00 would be forwards to the Appellant/Defendant upon receipt of the duly executed Transfer Form 14A as instructed by the Respondent/Plaintiff and that the Respondent/Plai9ntiff would proceed for specific performance of the said Agreement in the event there is a failure on the part of the Appellant/Defendant to send the duly executed Transfer Form 14A within 7 days receipt of the letter dated 29.10.2002.

vii. Messrs. Dass Jainab & Associates had also written a letter dated 18.9.2002 to Jabatan Hasil Dalam Negeri enclosing the documents as stated in the said letter by way service upon the Jabatan Hasil Dalam Negeri for their further action in respect of the Real Estate Property Gains Tax.

viii. In any event, the breach of agreement was contributed by the Appellant/Defendant themselves due to their failure to return the Transfer Form 14A to the Respondent/Plaintiff for the same to be forwarded to the OCBC Bank for the release of the loan sum to enable the payment for the balance purchase price to be paid to the Appellant/Defendant to complete the sale.

ix. Therefore, it is unjustifiable for the Appellant to contend in its Memorandum of Appeal that the Learned High Court Judge has failed to appreciate the fact that the Respondent/Plaintiff has not been ready and willing to perform the contract when all the while, it was due to the Appellant/Defendant’s own failure to deliver the Transfer Form 14A on time for the payment be made by 19.11.2002 since the Loan was approved on 9.10.2002.

7. The Learned High Court Judge has erred in the eyes of law and fact in failing to take into account the exhibits D34, D35, D36 and D37 respectively [Ground 10 of the Memorandum of Appeal]

i. It is the contention by the Appellant/Defendant in its Memorandum of Appeal that the Learned High Court Judge has

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failed to give full effect of the exhibits D34, D35, D36 and D37 respectively.

ii. However, it is submitted herein as follows:-

(a) The Appellant/Defendant’s contention that it had issued a letter dated 22.7.2002 [D34] to the Respondent/Plaintiff requiring him to stop the repair works was only received by Respondent/Plaintiff on 29.7.2002. The Respondent/Plaintiff had obtained the permission from the Appellant/Defendant on 7.6.2002 to commence repair works on the building on the said property and that the said Sale and Purchase Agreement did mention that all the expenses and cost for the renovating and repairing the building erected upon the said property shall be borne solely by the Respondent/Plaintiff and as such it is evident that the letter dated 22.7.2002 was an afterthought. As the repairs are to be done by the Respondent/Plaintiff and since the Appellant/Defendant as the landlord has no intention to do the repair, the Appellant/Defendant would not have objected to the Respondent/Plaintiff commencing repair works in order to carry on the business and the Appellant/Defendant to continue to collect the rental. It was only when the dispute as to the insurance claim arose that the Appellant/Defendant put in writing to stop the Respondent/Plaintiff from repairs but by then the Respondent/Plaintiff had substantially completed the repairs.

(b) The Appellant/Defendant’s contention and allegation in its letters dated 27.7.2002 [D35] & [D36] and 28.7.2002 [D37] as well as the solicitor’s letter dated 7.8.2002 respectively that the Respondent/Plaintiff had breached his promise to the Appellant/Defendant and the transaction in respect of the sale and purchase of the said property is unfounded on the basis that the Respondent/Plaintiff had executed its obligations pursuant to the terms as stipulated in the said Sale and Purchase Agreement whereas the Appellant/Defendant had breached the Sale and Purchase Agreement by attempting to terminate the Sale and Purchase Agreement even though the Appellant/Defendant was not entitled to do so. Till to date, the said Sale and Purchase Agreement is still valid and binding upon the Appellant/Defendant.

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(c) The Respondent/Plaintiff is ready and willing to complete its obligations pursuant to the said Sale and Purchase Agreement and the Court should exercise its discretion to grant specific performance as under Section 119 of the Specific Relief Act damages is inadequate but on the other hand the claim by the Appellant/Defendant is no longer sustainable in the light of what has happened to date.

iii. In light of the above, it is humbly submitted that the ground in the Memorandum of Appeal is unsustainable herein since the exhibits are not reflective of the Appellant/Defendant’s intention to make the Sale and Purchase Agreement dated 19.7.2002 conditional.

8. The Learned High Court Judge has erred in the eyes of law

and fact when His Lordship has failed to appreciate the fact that the Appellant/Defendant is entitled to take into account the Appellant/Defendant’s claim for total insurance claim when setting the purchase price [Ground 11 of the Memorandu of Appeal].

a. It is the contention by the Appellant/Defendant that the Learned High Court Judge of Alor Setar has failed to take into account the fact that the Appellant/Defendant is entitled to take into consideration the Appellant/Defendant’s claim for total insurance claim when settling the purchase price.

b. Mr. Venugopalan in his testimony during the trial has stated that Dr. S. Balakrishnan could not sell a building and the land upon which the building is erected to the Respondent/Plaintiff upon having full knowledge that the building needs to be demolished. This is because in the event the building is sold to the Respondent/Plaintiff with the full knowledge that the building needs to be demolished, then this would constitute an act of fraud by the Vendor. In such a case, the Vendor is only entitled to sell the land without the building and the Purchaser should only be subjected to the purchaser of the land and not the building erected on the said land. It at all, the Purchaser is only obligated to pay for the value of the land and not the building as well.

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c. It is submitted that in the light that he has agreed to sell the building and the land therefore his claim against the insurance company should have no bearing on the said Sale and Purchase Agreement otherwise he should just be selling the land and nothing else.

d. It must be noted that the value of the building according to the said Sale and Purchase Agreement is RM27,000.00 as at the year 2002. However, based on the said Sale and Purchase Agreement dated 21.9.1995, the value of the said property was RM285,000.00 and it must be noted that the building was a new building then. Thus, it is rather perplexing that the said property can be sold to Mr. Lim Eng Huat at RM270,000.00 despite the fact that the building being a total loss and shall be demolished as alleged in the said letter. Mr. Venugopalan confirmed that he had submitted the CKHT form to Jabatan Hasil Dalam Negeri vide the letter from Messrs. Dass Jainab & Associates dated 18.9.2002.

e. Mr. Venugopalan also confirmed that no complaint was ever made by Dr. S. Balakrishnan to the Council in respect of any unauthorized works carried out by the Respondent/Plaintiff as alleged by Dr. S. Balakrishnan. Further, Dr. S. Balakrishnan continued to collect rental from the Respondent/Plaintiff for his occupation on the said property which as a Landlord he has to ensure that such by-law is not breached if he intended to continue to collect rental.

f. Dr. S. Balakrishnan had subsequently decided not to proceed with the said Sale and Purchase Agreement due to the fact that the insurance company only offered RM60,000.00 for the said building upon valuation and it is an afterthought to renege from the said Sale and Purchase Agreement. He had also confirmed that the building was not a total loss as otherwise it could not be sold together with the land.

g. The Learned High Court Judge has made a finding that the Defendant’s witness, Dr. S. Balakrishann is not a truthful witness which means that his contention that the Appellant/Defendant is entitled to take into account the total insurance claim when settling the purchase price since there was no clause of such a nature included in the Sale and Purchase Agreement which makes the motive of Dr. S. Balakrishann questionable.

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h. In light of this, the Appellant/Defendant’s ground in the Memorandum of Appeal should fail in limine.

9. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship has failed to take into account the Respondent has agreed that the purchase price is to be set at RM270,000.00 on condition that the Appellant/Defendant’s claim for total loss insurance claim is allowed [Ground 12 of the Memorandum of Appeal].

a. According to the testimony provided by Mr. Venugopalan, he has confirmed that the agreed purchase price at that moment was for a sum of RM270,000.00.

b. It is thus submitted that the sum of RM270,000.00 fixed was a reasonable sum since the ground floor of the said property was destroyed by the said fire outbreak. Pursuant to the Valuation Report by Messrs. G.E. Tan & Associates addressed to OCBC Bank (Malaysia) Berhad dated 14.8.2002 (hereinafter referred to as the said Valuation Report) which was prepared for purposes of processing the Respondent/Plaintiff’s bank loan to purchase the said property, the market value of the said property after it was repaired was only at RM300,000.00 wherein the land was valued at RM80,000.00 whereas the building was valued at RM220,000.00.

c. At this instance, it would be safe to state that Dr. S. Balakrishnan had lied on oath when he testified that the purchase price of the said property for a sum of RM270,000.00 was sold below the market price yet produced no Valuation Report to substantiate it. He even tried to allege that he paid RM385,000.00 to purchase to introduce the under-counter monies to justify what he said. If it is under-counter monies it would be totally illegal and the price would be reflected. The PW3 said that when he did a search there was nothing in the Land Office to reflect that it was RM385,000.00 as the purchase price. If the house was fully renovated and it is valued at RM300,000.00 how then could the sum of RM220,000.00 be below market value?

d. Furthermore, the Learned High Court Judge has ruled that the Defendant’s witness, Dr. S. Balakrishnan is not a truthful witness which supports the Respondent/Plaintiff’s contention

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that the Respondent/Plaintiff has lied on oath in respect of the purchase price of the said Property.

10. The Learned High Court Judge has erred in the eyes of law and fact wherein His Lordship has failed to make a finding that the Respondent/Plaintiff is not at all entitled to repair/renovate the said property [Ground 13 of Memorandum of Appeal].

a. It is contended by the Appellant/Defendant that the Respondent/Plaintiff is not entitled to repair or renovate the said property.

b. However, it is humbly submitted by the Respondent/Plaintiff that the Learned High Court Judge has made a specific finding on this point wherein His Lordship has found that the repairs done to the said property was premised on an earlier permission by the Defendant and in reliance to Clause 17(iv),(v) and (vi) of the said Agreement.

11. The Learned High Court Judge has erred in the eyes of law

and fact when His Lordship failed to make a finding that the totality of the evidence clearly showed the Appellant/Defendant never gave permission to the Respondent/Plaintiff to renovate or repair the property after the fire and that the Respondent/Plaintiff has clearly breached the Agreement dated 19.7.2002 when the Respondent/Plaintiff repaired and/or renovated the said property [Ground 14 and 15 of Memorandum of Appeal].

a. It is contended by the Appellant/Defendant that the Learned High Court Judge has erred when His Lordship has failed to make a finding that the totality of the evidence clearly showed that the Appellant/Defendant never gave permission to the Respondent/Plaintiff to renovate or repair the property after the fire.

b. However, the Learned High Court Judge has made a specific finding in respect of the repair upon analyzing the Clauses 17(iv),(v) and (v) respective wherein His Lordship has stated that there was also no clause in the Agreement that upon signing, the Respondent/Plaintiff was not to renovate the said property but the Appellant/Defendant kept stressing that it was a mutual understanding between him and Mr. Lim (Plaintiff). The Court once more questioned the motive of the Appellant/Defendant when it could have easily be

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included as a clause in the Agreement that Mr. Lim was prohibited or not allowed to carry out any renovations prior to the approval of the Appellant/Defendant’s total loss insurance claim but had included a clause that any costs of renovation or repair done would be borne by the Respondent/Plaintiff. It could have easily be drafter in such a way in that ‘The Purchaser shall not be allowed to carry out any renovations or repair works until the Vendor’s to9tal loss insurance claim is settled and any costs thereof shall be wholly borne by the Purchaser.’

c. Based on this, there is no breach as alleged by the Appellant/Defendant in its Memorandum of Appeal.

d. In light of this, it is humbly submitted that the Appellant/Defendant’s ground in the Memorandum of Appeal should fail in limine.

12. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship has failed to make a finding that the Respondent/Plaintiff clearly breached the agreement dated 19.7.2002 and did not perform or comply with his obligations under the agreement [Ground 16 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that the Learned High Court Judge has erred when His Lordship failed to make a finding that the Respondent/Plaintiff has breached the agreement dated 19.7.2002 and did not perform or comply with his obligations under the agreement.

b. However, it is the contention by the Respondent/Plaintiff that the Respondent/Plaintiff has at all material times complied with the Sale and Purchase Agreement on the following grounds:-

(i) The Respondent/Plaintiff had made an application for a bank loan wherein the letters dated 9.10.2002, OCBC Bank (Malaysia) Berhad had approved the loan for a sum of RM230,000.00 to fund the purchase of the said property.

(ii) In fact, on 24.10.2002, the Respondent/Plaintiff had paid a sum of RM13,000.00 which is the difference between the balance purchase price (RM243,000.00)

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and the loan sum (RM230,000.00) which was approved by OCBC Bank (Malaysia) Berhad to the Respondent/Plaintiff. The Respondent/Plaintiff’s solicitor had issued the receipt dated 24.10.2002 as a proof of payment. the Respondent. Plaintiff had also paid a sum of RM27,000.00 being the deposit sum out of the full purchase price i.e. RM27,000.00.

(iii) The said tenancy was terminated on 19.7.2002, i.e. the date the parties had signed the said Sale and Purchase Agreement. If the said Sale and Purchase Agreement was conditional, then the Appellant/Defendant would not have terminated the said Tenancy Agreement. The Respondent/Plaintiff had instructed his solicitor to stamp the said Sale and Purchase Agreement.

(iv) A copy of the CKHT2, the title deed in respect of the said property as well as the said Sale and Purchase Agreement was produced to the Jabatan Hasil Dalam Negeri. It is pertinent to note that this clearly shows that the Respondent/Plaintiff was ready and willing at all material times to continue with the said Sale and Purchase Agreement. The Respondent/Plaintiff had also not accepted the repudiation of the Appellant/Defendant and had challenged the unlawful termination and treated the said Sale and Purchase Agreement as still subsisting and as at today, both parties are able to perform the contract.

c. Thus, based on the abovementioned facts, it is clear that the Respondent/Plaintiff has at all material times complied with the terms of the said Agreement and in any event it was the Appellant/Defendant who has contributed to the breach in the sense that the Appellant/Defendant has failed to sign the Transfer Form 14A despite the reminder sent to him on 30.9.2002 since the Bank Loan from OCBC Bank was approved on 9.10.2002 and the Respondent/Plaintiff was ready and willing to complete the sale and has taken all the effort towards the payment of the balance purchase price and would have done so if not for the Appellant/Defendant who refused to co-operate in returning the duly executed Transfer Form 14A.

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d. Hence, it is unconscionable for the Appellant/Defendant to now claim that the Respondent/Plaintiff has breached the agreement dated 19.7.2002 and did not perform or comply with his obligation under the agreement.

13. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship has failed to make a finding that the Respondent/Plaintiff renovated and repaired and continue to renovate and repair the property knowing very well that he had no right to do so [[Ground 17 of Memorandum of Appeal].

a. It is contended by the Appellant/Defendant that the Respondent/Plaintiff had renovated the said property with the full knowledge that he was not allowed to do so.

b. However, it is submitted by the Respondent/Plaintiff that the Appellant/Defendant has been collecting rental despite the property being damaged by the fire outbreak. As such, it is unconscionable for the Appellant/Defendant to state that the Respondent/Plaintiff does not have the right to repair and/or renovate the said property when the said property has to be repaired in order for the Respondent/Plaintiff to continue occupying the said property for business purpose.

c. In fact, it would tantamount to fraud in the event the Appellant/Defendant collects rental over a damaged property without giving a right to the Respondent/Plaintiff to repair or renovate the said property for purpose of occupation.

d. In any event, the Respondent/Plaintiff has the right to renovate the said property as a tennat since the Respondent/Plaintiff has been paying rental even after the fire outbreak.

e. Furthermore, it is submitted by the Respondent/Defendant that the Learned Judge of the High Court at Alor Setar has clearly made a finding on this point in that there was no clause in the Agreement that upon signing the Respondent/Plaintiff was not to renovate the said property but the Appellant/Defendant kept stressing that it was a mutual understanding between him and Mr. Lim (the Respondent/Plaintiff). The Court has also questioned the motive of the Appellant/Defendant when it could have easily included as a clause in the Agreement that Mr.Lim was prohibited or not allowed to carry out any renovations prior

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to the approval of the Appellant/Defendant’s total loss insurance claum but had included a clause that any costs of renovation or repair to be done would be borne by the Respondent/Plaintiff.

f. Further, the Learned Judge also made a finding that the Agreement could have been drafted in a way that the Respondent/Plaintiff is not allowed to carry out any renovations or repair works until the Vendor’s total loss insurance claim is settled and any costs thereof to be borne completely by the Respondent/Plaintiff.

14. The Learned High Court Judge has clearly misinterpreted Clauses 17(iv),(v) and (v) of the Agreement dated 19.7.2002 and that the Learned High Court Judge has erred in the eyes of law and fact because Clauses 17(iv), (v) and (vi) of the Agreement did not give any right to the Respondent/Plaintiff to repair the said property before the Respondent/Plaintiff settled the balance purchase price pursuant to the said agreement [Ground 18 and 19 of Memorandum of Appeal].

a. It was contended by the Appellant/Defendant that the Learned High Court Judge had misinterpreted the Clauses 17(iv),(v) and (vi).

b. However, it is humbly submitted that the Learned High Court Judge has clearly made a finding upon reading the Sale and Purchase Agreement in particular Clauses 17(iv),(v) and (vi) respectively, the said Agreement was unconditional upon insurance claim by the Appellant/Defendant. The Court was also of the view that if the said agreement was to be conditional upon insurance claim then the said agreement must signify the intention of the Parties to the Agreement. Clauses 17(iv), (v) and (vi) provide inter alia that the Purchaser (Respondent/Plaintiff) shall be responsible for the repair works and have no claim to the insurance monies.

c. The Court also further made a finding that the Agreement should be the determining document which governs the contractual relationship between the Respondent/Plaintiff and the Appellant/Defendant. The repairs done to the said property was premised on an earlier permission by the Appellant/Defenant and in reliance to Clauses 17(iv),(v) and (vi) of the Agreement.

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15. The Learned High Court Judge had erred in the eyes of law and fact because the issue of “Total Loss” is not an issue to be determined by the Learned High Court Judge [Ground 20 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that the issue of Total Loss is not to be determined by the said Learned High Court Judge.

b. The Learned High Court Judge has made a finding that there is a evidence before the Court that the damage to the said property was only 50% as per Bomba Report in para 2.7 ‘peratusan kemusnahan 50%’. Regardless of the claim by the Appelant/Defendant for total loss of the said property, th Court was of the view that based on exhibit P51, the damage to the said building was only 50% and not a total loss.

c. The report from the Bomba which was tendered by the Appellant/Defendant themselves clearly show that the upper floor was not affected. In light of this, it is clearly apparent that the damage to the said property was not total loss.

d. The fact that the Appellant/Defendant has obtained a full claim in another court in respect of his insurance claim ought to be taken into consideration. As such, the issue as to whether the Learned High Court Judge has the right to deocde upon this issue or not is immaterial since the issue of total loss claim was raised by the Appellant/Defendant in the High Court Suit which ought to be decided upon.

e. In light of this, the ground in the Memorandum of Appeal ought to fail herein.

16. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship failed to take into account Paragraph 17(iv) of the Agreement dated 19.7.2002 which stated that “the building erected upon the said property has been badly damaged in a fire on 12 th May 2002 and is currently unfit for any habitation or for the conducting or any business and the Purchaser is purchasing the said property with full knowledge thereof” [Ground 21 of Memorandum of Appeal].

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a. It is the contention by the Appellant/Defendant that the Learned High Court judge has failed to take into account Paragraph 17(iv) of the Agreement dated 19.7.2002 which stated that “the building erected upon the said property has been badly damaged in a fire on 12th May 2002 and is currently unfit for any habitation or for the conducting or any business and the Purchaser is purchasing the said property with full knowledge thereof”.

b. However, the Learned High Court Judge has clearly made a finding on this point wherein the Learned High Court Judge has stated that the Court agreed with the Respondent/Plaintiff that the termination was unlawful as the Appellant/Defendant had succeeded in his insurance claim. The said property had withstand the fire and remained intact and the Appellant/Defendant over the period had been collecting rental in the sum of RM150,000.00. The Appellant/Defendant cannot ‘blow hot and cold’ to say that the said property was a total loss and at the same time receiving rental from the Respondent/Plaintiff albeit on a monthly basis.

c. In light of this, it is clear that the Learned High Court Judge has taken into account the particular Clause 17(iv) of the said Agreement.

17. The Learned High Court Judge has erred in the eyes of law and fact when His Lordship has made a finding that the damage to the property was only 50% [Ground 22 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that the said High Court Judge has erred when His Lordship has made a finding that the damage to the said property was only 50%.

b. However, it is to be noted the Laporan Jabatan Bomba dan Penyelamat Malaysia was an evidence tendered by the Appellant/Defendant themselves which clearly showed that the degree of damage was only 50%. In light of this, it is humbly submitted that the High Court Judge has made a finding based on the evidence tendered by the Appellant/Defendant himself which cannot be denied now.

c. In light of this, it is submitted by the Respondent/Plaintiff that the ground in the Memorandum of Appeal is unsustainable.

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18. The High Court Judge has erred in the eyes of law and fact when His Lordship has failed to take into account or make a finding that the exhibit “P-51” (which is the Laporan Jabatan Bomba dan Penyelamat Malaysia) was only marked as exhibit for the purpose of showing that such a report existed and that the maker of the Report was not called as a witness. The contents of the Report was not disputed and should not be accepted as evidence and that the said Report is a hearsay [Ground 23 of Memorandum of Appeal].

a. It is the contention by the Respondent/Plaintiff that eventhough the Report from Jabatan Bomba dan Penyelamat Malaysia was tendered by the Respondent/Plaintiff themselves but was previously tenderd in the other suit wherein the Appellant/Defendant has filed a total insurance claim, to deny its authenticity at this stage would be unconscionable since the said document was already litigated during the trial and taken into account by the Learned High Court Judge and was relied upon by the Appellant/Defendant.

b. In light of this, the Learned High Court Judge was not erroneous in His Lordship’s Judgment when His Lordship made a finding that the said Laporan Bomba dan Penyelamat Malaysia states that the damage to the property was only for 50%.

19. The Learned High Court Judge has erred in law and fact when His Lordship failed to consider the testimony and Reports tendered by the witness for the Appellant/Defendant i.e SD1 [Ground 24 of Memorandum of Appeal].

a. The reason why SD1 was rejected was that in the Court’s finding, the Court has stated that the report by SD1 tendered as exhibit D61 as not reflective of the actual structural damafe to the said property despite the detail description of the damage caused by fire. Contrary to its report it was difficult to reconcile with the fact that the said property still remain intact until the date of the trial and the Respondent/Plaintiff was still carrying on its tyre business and the Appellant/Defendant continued to receive rentals albeit on a month to month basis. Ironically, SD1 still standby his report D61 that the said property should be demolished as it was not safe for human habitation.

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b. In light of the above, it is the submission of the Respondent/Plaintiff that the ground in the Memorandum of Appeal ought to fail.

20. The Learned High Court Judge has erred in law and fact when His Lordship has failed to deny the report and evidence tendered by SP7 [Ground 25 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that His Lordship has accepted the evidence and report prepared by the Respondent/Plaintiff’s witness SP7.

b. However, it is the humble submission by the Respondent/Plaintiff that the reason why the Court has accepted the evidence provided by SP7 is as follows:-

“The Court accepted the structural report exhibit P58 prepared some 8 years after the fire broke out as signifying that the property in question was structurally safe for occupation by the Respondent/Plaintiff to carry out its tyre business. The Court finds that the report by SD1 tendered as exhibit D61 as not reflective of the actual structural damage to the said property despite the detail description of the damage caused by fire. Contrary to its report it was difficult to reconcile with the fact that the said property still remain intact until the date of the trial and the Respondent/Plaintiff was still carrying on its tyre business and the Appellant continued to receive rentals albeit on a month to month basis. Ironically, SD1 still standby his report D61 that the said property should be demolished as it was not safe for human habitation.”

c. In light of the findings made by the Learned Judge it is justifiable that the Report tendered by SP1 and the testimony provided by SP1 was not in line with the condition of the said property as at the date of the Trial which shows that this ground in the Memorandum of Appeal is also unsustainable.

21. The Learned Judge has erred in law and fact when His Lordship failed to take into consideration the fact that since July 2002, the Respondent/Plaintiff has been occupying the said property as a tenant and that the

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Respondent/Plaintiff is liable to pay rental at all material times [Ground 26 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that the Respondent/Plaintiff is liable to pay rental at all material times since he has been occupying the said land as a tenant.

b. However, it must be noted herein that the rental was also collected after the fire outbreak when the property was yet to be repaired. In light of this, it is humbly submitted that the Appellant/Defendant has been collecting rental over a property which was not fit for human habitation immediately after the fire outbreak on 12.5.2002 only on the basis that the Respondent/Plaintiff was in need of the said property since the tyre business was his sole bread and butter.

c. In the finding made by the His Lordship, it is humbly submitted that the Appellant/Defendant has over the period had been collecting rental in the sum of RM150,000.00. The Appellant cannot blow hot and cold to say that the said property was a total loss and at the same time receiving rentals from the Respondent/Plaintiff albeit on a monthly basis.

d. Hence, it is clear that the Appellant/Defendant has been collecting rental for a property which was damaged in a fire outbreak which should not have been allowed in the first place since the said property prior to the repair was not fit for habitation.

e. In light of this, it I humbly submitted that the Learned Judge was not erroneous in His Lordship’s finding herein.

22. The Learned Judge has erred in law and fact when His Lordship failed to take into account the fact that SP1, SP2 and SP5’s testimony in denying the Appellant/Defendant’s right to make an insurance claim for total loss and that such conduct is inequitable wherein the witnesses have gone out of their way to give evidence that the Appellant/Defendant was not entitled to the claim for total loss due to lack of expertise in providing testimony on the said issue [Ground 27 of Memorandum of Appeal].

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a. It is the contention of the Appellant/Defendant that the Respondent/Plaintiff’s witnesses i.e, SP1, SP2, and SP5 do not have the expertise to provide evidence that the Appellant/Defendant was not entitled to the claim for total loss due to lack of expertise in the said issue.

b. However, based on the fact that the Appellant/Defendant has filed a suit in the Magistrates Court at Alor Setar for a claim on total insurance claim whereby the Appellant/Defendant was granted damages for total loss, then it is clear that the Appellant/Defendant is attempting for a double recovery on the same issue, i.e. total loss which is clearly reflective of the fact that the Appellant/Defendant is not coming before This Honourable Court with clean hands.

c. In light of this, it is humbly submitted that the Learned Judge has considered all the evidence put before His Lordship whilst considering the testimony provided by the respective witnesses for the Respondent/Plaintiff before making a finding that the Appellant/Defendant is not entitled to total loss. Hence, this ground ought to fail as well.

23. The Learned High Court Judge has erred in law and fact when His Lordship made a finding that the Court agrees with the Respondent/Plaintiff that the termination was unlawful as the Respondent/Defendant had succeeded in his insurance claim and failed to take into account that the said insurance claim was only successful vide a decision pronounced in the year 2010 [Ground 28 of Memorandum of Appeal].

a. It is the contention by the Appellant/Defendant that the Learned High Court Judge has erred when His Lordship made a finding that the termination of the Sale and Purchase Agreement was unlawful as the Appellant/Defendant has succeeded in his insurance claim and that the said insurance claim was only successful in the year 2010.

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b. It is the submission by the Respondent/Plaintiff that THE SAID Sale and Purchase Agreement is not conditional upon the insurance claim by the Appellant/Defendant. In any event, the Appellant/Defendant has obtained total insurance claim vide his action for the same in the year 2010.

c. Hence, the Appellant/Defendant should not be allowed to enrich himself with another claim for total loss vide the Civil Suit No. 22-238-2002 to the detriment of the Respondent/Plaintiff.

d. Furthermore, the Learned High Court Judge has made a finding upon analyzing the evidence provided by the witnesses and the documentation tendered as to the intention of the parties and made a finding that “for all intent and purposes the Agreement should be the determining document which governs the contractual relationship between the Respondent/Plaintiff and the Appellant/Defendant.”

e. Furthermore, the witness SD2, should not be allowed to aprrobate and reprobate in the sense that at one hand to state that the said property is a total loss and at the other end, still receive rental from the Respondent/Plaintiff.

f. In light of this, it is humbly submitted herein that it is immaterial that the Appellant/Defendant has only obtained a judgment in 2010 is immaterial since the Appellant/Defendant should not be allowed.

24. The learned High Court Judge has erred in law and fact in failing to make a finding that the conduct of the Respondent/Plaintiff is inequitable as a whole [Ground 29 of Ground of Appeal].

a. It is the contention by the Appellant/Defendant that the Learned High Court Judge has failed to make a finding that the Respondent/Plaintiff’s conduct as a whole is inequitable.

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b. However, if one is to observe the findings by the Learned High Court Judge, it is clear that the High Court Judge is of the view that the witness for the Defendant, i.e. SD2, Dr. S. Balakrishnan was not a truthful witness considering the fact that the said witness has always been blowing hot and cold in his conduct and as such, the witness’s contention that the conduct of the Respondent/Plaintiff is inequitable cannot be accepted since the Respondent/Plaintiff has at all material times complied with the terms of the Sale and Purchase Agreement.

c. In light of the above, the ground in the Memorandum of Appeal should fail in limine.

F. CONCLUSION

Based on the all the evidence presented by the witnesses from the Appellant/Defendant and the Respondent/Plaintiff as highlighted above and in light of the finding made by the Learned High Court Judge, it is humbly submitted as follows:-

(a) That the decision pronounced on 15.5.2011 was reached based on the facts and evidence produced and presented before the Learned High Court Judge during the trial proceeding as well as the advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, which are sufficient to explain or justify the Learned Trial Judge's conclusion herein.

(b) That there is not in existence, a serious misdirection by the Learned Trial Judge or that the Learned Trial Judge has taken into account something that His Lordship should not, or that His Lordship has failed to take into account something His Lordship should have had regard to, or that His Lordship’s order amounts to a miscarriage or failure of justice, which calls for a need for This Honourable Court to intervene and exercise a discretion of its own in reversing the decision made on 15.5.2011 by the Learned Trial Judge.

Therefore, the Respondent/Plaintiff humbly prays that the Appellant/Defendant’s Appeal be dismissed with costs.

Dated this 17th day of June, 2013.

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.............................. Solicitors for the Respondent/ Plaintiff Messrs. Presgrave & Matthews

This Respondent’s Written Submission is filed by Messrs Presgrave & Matthews of Standard Chartered bank Chambers, No.2 Beach Street, 10300 Penang, solicitors for the Respondent/Plaintiff abovenamed.