A claim for specific performance necessitates stringent compliance with contractual obligations, including timely payment, which if unmet, barring the remedy regardless of other considerations.

JUDGMENT

Amarjeet Singh Serjit Singh JC:

Introduction

[1] This judgment is after a full trial and concerns issues on the remedy of specific performance, limitation periods under ss 9 and 32 of the Limitation Act 1953 and the doctrine of laches. In a writ dated 24 February 2017 the plaintiff, Fabricontrol Construction (M) Sdn Bhd sued the defendants for specific performance arising from four sale and purchase agreements ("the agreements") entered with the defendants' respective attorneys under a power of attorney, vacant possession of the said land and consequential relief. The sale and purchase was for the undivided shares each defendant owned in two pieces of land known as Lot No 57 and Lot No 68, Section 4, Bandar Jelutong, Daerah Timur Laut, Pulau Pinang ("the said land").

[2] The defendants at the time the agreements were executed were beneficiaries entitled to the undivided shares that were yet to be distributed according to Islamic law ie, the Sijil Faraid of the deceased owners. A clause in the agreements was made to provide an obligation on the vendors to apply for and obtain the necessary distribution orders under the Small Estates Distribution Act 1955 ("the distribution orders") according to the said Sijil Faraid. The distribution orders were subsequently obtained and the undivided shares were transmitted to the respective defendants.

[3] Thirty-four defendants filed their memorandum of appearance and defence while the remaining nineteen defendants did not participate in these proceedings. The plaintiff proceeds against these nineteen defendants as if they had entered appearance under O 13 r 6(1) of the Rules of 2012. In the circumstances the outcome of these proceedings will determine their position.

[4] The agreements were entered into with the 1st defendant, Shaik Ismail bin Shaik Hamid and two other persons, since deceased, namely Shaik Hussain bin Shaik Ahmad and Kassim bin Abdullah (hereinafter known collectively as "the vendors" or individually as the 1st vendor, 2nd vendor and 3rd vendor respectively). Time was expressly stipulated to be the essence of the agreements.

The Sale And Purchase Agreements

[5] The Sijil Faraid for the estate of one Shaik Hamid bin Shaik Hussain provided the undivided shares each beneficiary held in respect of 6/9 undivided share in the said land. The purchase price for the undivided shares of the beneficiaries of this estate stated in the sale and purchase agreement dated 23 January 2006 entered into by the 1st vendor was RM473,853.99 ("the 1st agreement").

[6] The Sijil Faraid for the estate of Shaik Ahmad bin Shaik Hussain provided the undivided shares each beneficiary held in respect of 1/9 undivided share in the said land. The purchase price for the undivided shares of the beneficiaries of this estate stated in the sale and purchase agreement dated 23 January 2006 entered into by the 2nd vendor was RM78,975.67 ("the 2nd agreement").

[7] The Sijil Faraid for the estate of Che Jah binti Haji Abdul Rahman provided the undivided shares each beneficiary held in respect of 1/9 undivided share in the said land. The purchase price for the undivided shares of the beneficiaries of this estate stated in the sale and purchase agreement dated 23 January 2006 entered into by the 2nd vendor was RM78,975.67 ("the 3rd agreement").

[8] The Sijil Faraid for the estate of Wan Chik bin Shaik Hussain provided the undivided shares each beneficiary held in respect of 1/9 undivided share in the said land. The 3rd vendor apparently entered into two sale and purchase agreements in respect of the undivided shares concerning some of the said beneficiaries of this estate. The first was dated 23 January 2006 with only 3 beneficiaries granting the 3rd vendor the power of attorney to sell their undivided shares with the purchase price of RM33,035.52 ("the 4th agreement") and the second was dated 14 March 2008 with 11 beneficiaries, including the earlier 3 beneficiaries ("the 5th agreement"). The purchase price stated