Richard Malanjum JCA:

[1] There are two appeals before us. One appeal (W-02-76-2005) (the appeal proper) is by IIUM Education Sdn Bhd (IIUM) against the Order made by James Foong Cheng Yuen J (as he then was) (the first learned High Court Judge) of the Kuala Lumpur High Court given on 31 December 2004 (the Removal Order) allowing the application by FIT Teknologi Federal Sdn Bhd (FIT) to remove the caveat lodged by IIUM on a parcel of land measuring approximately 4 acres held under Title No HS (D) No 83192, Lot No 12734, situated in the Mukim and District of Kuala Lumpur, Wilayah Kuala Lumpur (the said land). The other appeal (W-02-69-2005) (the stay appeal) is by the FIT against the granting of stay of the Removal Order (the Stay Order) given by Abdul Malik Ishak J (as he then was) (the second learned High Court Judge) of the Kuala Lumpur High Court on 17 January 2005.

[2] When the stay appeal came up for hearing on 27 January 2005 this Court suggested and the parties agreed that the appeal proper should be heard first and to be followed by the stay appeal. Hence we proceeded to hear the appeals in that sequence.

[3] After hearing the parties in the appeal proper we dismissed the appeal with costs and affirmed all the orders given by the first learned High Court Judge. In respect of the stay appeal we also heard the parties and at the conclusion of the arguments we allowed the appeal with costs here and below. We also refused stay pending application for leave to the Federal Court. Further, we ordered that the caveat lodged was to be removed forthwith and direct the registrar of titles to register the instrument of transfer in respect of the said land.

[4] Briefly the facts are as follows. FIT was running a college called the Federal Institute of Technology providing engineering courses. As it did not wish to continue as a college FIT being the registered owner of the said land was keen to sell it to any interested purchaser Thus in May 2003 IIUM approached FIT with a view to purchase the said land. Negotiation between the parties commenced with the salient terms agreed upon during a meeting held on 13 June 2003 but subject to a sale agreement being executed. Some of the terms agreed were that the total price would be RM16,500,000, that non-refundable earnest deposit of RM330,000 equivalent to 2% of the purchase price was to be fully paid by the end of June 2003, that 8% of the purchase price would be payable on the execution of the sale agreement which must be signed by 28 June 2003. It was also an agreed term that the earnest deposit would be forfeited in the event IIUM failed to sign the sale agreement by 28 June 2003.

[5] However the due dates as agreed upon were not strictly complied with. Instead there were exchanges of correspondences between the solicitors acting for the respective parties. The earnest deposit was only paid on 3 September 2003.

[6] Subsequently on 9 September 2003 a draft of the sale agreement was sent by the solicitors of FIT to the solicitors of IIUM with request for comments on the draft. Unfortunately despite several reminders the solicitors for IIUM could only reply vide their letters dated 7 October 2003 and 6 November 2003 indicating that they were still waiting for a reply from IIUM. Further correspondences between the solicitors of the parties indicated that IIUM sought for an extension of time to 31 January 2004 in paying for the balance of the purchase price. FIT by its letter dated 27 October 2003 did not agree to the request for extension of time and insisted that the sale agreement must be signed by 31 October 2003 failing which the 2% earnest deposit would be forfeited.

[7] By a letter dated 27 November 2003 the solicitors of FIT wrote to the solicitors of IIUM informing on the forfeiture of the earnest deposit due to the failure of IIUM to sign the sale agreement. In a letter dated 17 December 2003 IIUM wrote directly to FIT stating that the earnest deposit should not be forfeited and