P.S. Gill J:

This application is concerned with the jurisdiction of a Judge to alter and vary a judgment, regularly obtained, drawn up, perfected, and affirmed by the Supreme Court.

The brief facts of the case are that by a sale and purchase agreement dated 20th August 1984 the second defendant, Rumah Nanas Estate Sdn. Bhd., agreed to sell to the plaintiff, Plenitude Holdings Sdn. Bhd., a piece of Estate land at a price of RM47,939,958. The plaintiff paid a deposit of RM4,793,995.80 but failed to pay the balance sum within the stipulated period of the contract, or within the extended completion period. The second defendant then terminated the said agreement and forfeited the said deposit.

After having heard all the evidence I came to the conclusion that the termination of the contract by the second defendant was not valid and ordered specific performance of the contract for the sale and purchase of the land in question. The second defendant appealed against my judgment and the Supreme Court dismissed the second defendant's appeal and affirmed my judgment (See [1993] 2 CLJ 146).

Subsequently, the plaintiff paid the sum of RM43,145,962.20 being the balance of the purchase price to the second defendant and obtained a valid and legal title to the land in question.

On 17 February 1993 the second defendant filed an application by way of summons-in-chambers seeking an order that for the purpose of the specific performance by the plaintiff of the sale and purchase agreement dated the 20 August 1984, the plaintiff should pay to the second defendant in addition to the balance of the purchase price of RM43,145,962.20, a further sum as liquidated damages calculated at RM11,000 per day as expressly provided for in clause 3.4 of the agreement from the 21 May 1985 to the date of actual payment.

The second defendant had applied for leave by Notice of Motion to the Supreme Court on the 1 December 1992 prior to the hearing of the appeal proper to include a new ground of appeal namely:

Though the learned Judge ordered the agreement of sale and purchase dated 20 August 1984 between the plaintiffs as purchasers and the second defendants as vendors to be specifically performed in respect of the said land, he failed to expressly order the plaintiffs to comply with clause 3.3 of the said agreement and pay to the second defendants the sum of RM11,000 per day as payment of liquidated damages to be calculated on the balance purchase price of RM43,145,962.20 from 20 August 1985 to the date of actual payment.

The said application to include this fresh ground of appeal was dismissed by the Supreme Court prior to the hearing of the appeal proper.

In the trial proper before me in February 1992, the second defendant did not at any time raise the issue of a claim of RM11,000 liquidated damages per day in its pleadings, and it also did not file a counter-claim in the suit. During the hearing of the trial no question was asked by the second defendant's Counsel in regard to this particular claim, and neither did Counsel for the second defendant raise the matter in his submission.

However, Counsel for the second defendant submitted in support of this motion that in an order for specific performance of a contract for sale of land, the contract continues to exist, and is not merged in the Order of the Court. As such the Court is seised of the matter until the contract is fully and finally completed. Counsel for the second defendant also submitted that the provision for liquidated damages was part and parcel of the agreement and by obtaining an order for specific performance, the plaintiff had agreed to fulfill all the obligations under the terms of the agreement, including the claim relating to the liquidated damages.

Counsel for the second defendant submitted some authorities in support of his proposition of the law. With respect the facts in the authorities submitted are not similar to those in the present case more so, where an order for specif