Gunn Chit Tuan J:

The plaintiffs applied by originating summons dated 16 September 1986, for the following reliefs against the defendant:

1. A declaration that upon a true construction of the written agreement dated 31 March 1985 ("the first agreement") and made between the first plaintiff and the defendant, the first plaintiff is entitled to recover from the defendant a sum of RM200,000 paid by the first plaintiff to the defendant under the first agreement;

2. A declaration that upon a true construction of the written agreement dated 31 March 1985 ("the second agreement") and made between the second plaintiff and the defendant, the second plaintiff is entitled to recover from the defendant a sum of RM200,000 paid by the second plaintiff to the defendant under the second agreement.

3. Alternatively, that this Honourable Court do declare the sums of money that the plaintiffs are respectively entitled to recover from the defendant under the terms of the first and second agreements:

4. Further or other consequential orders as may be necessary to give effect to the aforesaid declarations or any of them, including orders as to payment of monies and interest thereon;

5. Costs of this action;

6. Such further or other relief as this Honourable Court deems just.

When Counsel for the parties appeared before me in chambers on 28 January 1987, Mr. Sri Ram for the plaintiffs stated that an affidavit in reply was only served on him the previous day and applied for an adjournment to file an affidavit in reply. He also applied for a hearing in open Court. Raja Aziz, Counsel for the defendant had no objections to the applications, and I made an order that the defendant pay the plaintiffs' taxed costs of the adjournment thrown away. By consent I also directed under O. 28 r. 4 of the Rules of the High Court 1980, that the affidavits filed do stand as pleadings and that both sides be at liberty to lead evidence.

Hearing in open Court began on 2 November 1987, and on that day Mr. Sri Ram referred to a statement of agreed facts dated 27 October 1987, filed by M/s. Sri Ram, Zulkifly & Kumar. In that statement it was stated that at all material times the defendant was the registered holder of 500,002 shares in a company called Dugaan Hati Sdn. Bhd. ("DHSB") being the whole of the issued and paid-up capital of the company. By an agreement in writing made on 13 March 1985 between the first plaintiff and the defendant, the first plaintiff agreed to purchase and the defendant agreed to sell 250,001 shares in DHSB for a sum of RM700,000. By another agreement of the same date made between the second plaintiff and the defendant, the second plaintiff also agreed to purchase and the defendant agreed to sell the balance of 250,001 shares in DHSB for a total purchase price of RM700,000. The plaintiffs paid a deposit of RM20,000 as earnest money on 18 February and also made the following payments to the defendant as part payment of the balance of the purchase price under the said agreements:

(a) a sum of RM110,000 on 30 March 1985

(b) a sum of RM10,000 on 15 April 1985

(c) a sum of RM280,000 on 8 August 1985.

The last date for the payment of the balance of the purchase price of RM490,000 under each of the agreements (totalling RM980,000) was 23 January 1986.

The plaintiffs failed to pay the total sum of RM980,000 on or before 23 January 1986. By letters dated 27 January 1986, the defendant by its solicitors terminated both agreements and purported to forfeit the sum of RM420,000 being RM210,000 under each agreement.

There was also a supplementary statement of agreed facts dated 5 December 1988, filed by M/s. Wang Kuo Shing & Co., solicitors for the defendant, in which it was stated that the sole asset of DHSB is a piece of land in Jalan Ipoh held under Lot 210 in Section 48 in the City of Kuala Lumpur held under State Lease 1472. DHSB has no trading activity and the defendant is a wholly owned subsidiary of Aik Hua Holdings Bhd. The promoters of Aik Hu