Claims arising from breach of contract are time-barred under the Limitation Act when not filed within the stipulated six-year period from the breach date.

JUDGMENT

Tee Geok Hock JC:

Introduction

[1] The Sessions Court summarily struck out the Appellants/Defendants' claims in the third party proceedings against the Respondents/Third Parties on ground inter alia that the Appellants/Defendants' claims in the third party proceedings are barred by limitation period and that the 2nd to 4th Defendants were not privies to any contract with the Third Parties.

[2] It is important to note that only the 1st Defendant has appealed against the Learned Sessions Court Judge's decision. The 2nd, 3rd and 4th Defendants have not and must be deemed to have accepted the decision. Therefore, we need only concern ourselves with the 1st Defendant's appeal against the First Third Party in setting aside and striking out the 1st Defendant's Third Party Notice and Statement of Claim. For the purposes of this appeal thereof, it does not concern the Plaintiff, 2nd, 3rd and 4th Defendants nor the 2nd Third Party who remains unrepresented.

[3] On appeal this Court on 14 September 2021 affirmed the Sessions Court's decision on ground of expiry of limitation period.

[4] Dissatisfied with the said decision the Appellant/1st Defendant has appealed to the Court of Appeal.

Background Facts

[5] In brief, the 1st Defendant (Shue Chuan) and the First Third Party (GASB) entered into two (2) Sale and Purchase Agreements both dated 25 October 1995 ("the two SPAs") wherein Shue Chuan had agreed to purchase two (2) Orchard Lots under leasehold known as Lot N.. 0921 and 0922 for a purchase price of RM318,000.00 and RM312,000.00 respectively ("the said Lots"). The said Lots were pieces of leasehold land known as Lot No. PT4020 and 4021 in Mukim Ulu Bernam, Daerah Batang Padang, Perak comprised in the Qualified Titles Nos. H.S(D) No. B.P. 394 and 395 respectively.

[6] Pursuant to Section 7.01(1) of the two SPAs, vacant possession of the said Lots were supposed to have been delivered within thirty-six,(36) months of the date of the two SPAs, ie on or before 25 October 1998.

[7] Pursuant to Section 7.01(2) of the two SPAs, if vacant possession was not delivered within the time as stipulated, GASB shall pay Liquidated Ascertained Damages ("LAD") to Shue Chuan calculated day to day at a rate of 10% per annum on the purchase price.

[8] It was conceded and remains the position of GASB that vacant possession was not delivered within the time frame as stipulated. As a matter of fact, and as to date, GASB has failed to deliver vacant possession and the Project has now been abandoned.

[9] The Plaintiff filed an action against Shue Chuan on 1 August 2019 and the rest of the Defendants for the recovery of certain credit facilities granted which remains unpaid. The Defendants then in turn issued a Third Party Notice and the Defendants' SOC against the Third Parties for indemnity and various other declaratory and other reliefs. The Third Party Notice was issued on 29 September 2020.

[10] GASB then filed a notice of application in Encl. 46 to set aside the Third Party Notice and strike out the Defendants' Statement of Claim pursuant to O 16 r 6, all four (4) limbs under O 18 r 19(a), (b), (c) and (d) and O 92 r 4 of the Rules of 2012 on the basis, inter alia that the Defendants' claims are time barred. GASB's application was allowed by the Sessions Court and Shue Chuan has appealed from that decision.

[11] As none of the 2nd to 4th Defendants have filed any appeal against the Sessions Court's decision, the 2nd to 4th Defendants are deemed to have accepted the Sessions Court's decision as correct.

Law On Limitation Period

[12] Section 6(1) of the Limitation Act 1953 provides as follows:

"Limitation of actions of contract and tort and certain other actions

6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say--

(a) actions founded on a contract or on tort;

(b) actions to enforce a recognisance;

(c) actions to enforce an award;

(d) actions t