Gopal Sri Ram JCA:

This is an appeal against the order of the High Court at Kuala Lumpur striking out the appellant's action under the provisions of O. 18 r. 19 of the Rules of the High Court 1980. We heard and dismissed this appeal on 19 October 1995 without calling upon the respondent to address us. The reasons for our decision are now produced.

The facts of this case may be briefly stated as follows. The parties to this appeal entered into an agreement dated 13 October 1991, for the sale and purchase of a certain piece of property. The respondent, as owner of the property was the vendor and the appellant was the purchaser. The agreement recites the purchase price to be RM4,990,000. Clause 5 of the agreement requires the respondent to deliver-up a duly executed transfer to the apellant's solicitors to be held by them pending the conclusion of the sale. Such a provision is commonplace in the context of our conveyancing practice. It is merely to ensure that there is no undue delay in having the transfer adjudicated by the Collector of Stamp Duty to ascertain the amount of duty payable, so that the instrument may be properly stamped and in readiness for presentation to the registering authority when the time for completion arrives.

To return to the narrative, the parties, on 12 December 1991, entered into a second agreement which stipulates for an increase in the purchase price of RM3 million. In consequence of this second agreement, the appellant was obliged to pay a total purchase price of RM7,990,000. However, the appellant contends that although the second agreement was voluntarily entered into and executed, the additional sum of RM3 million was never meant to be paid. The appellant had, on 7 June 1991, that is to say even before the first sale and purchase agreement had been executed, paid the respondent a sum of RM250,000 as a deposit for the purchase of the property in question. The appellant also entered a private caveat pending the completion of the sale to it.

Now, according to the respondent, the balance of the purchase price was due and payable not later than 30 July 1991. The first agreement provides in cl. 2 that the balance is to be paid by the appellant within four months "from the date of the notification of the Development Order for the said Project." Whether this was ever a live issue in the proceedings in the Court below is a matter we shall touch upon later in the judgment.

There is no dispute that the appellant sent a cheque in the sum of RM4,740,000 on 9 October 1992, in purported payment of the balance of the purchase price. Although the payment was, on the respondent's own evidence, made out of time, it was nevertheless accepted. But the cheque sent by the appellant was dishonoured. It was suggested before us by Counsel that payment on the cheque was stopped because the respondent had failed to comply with cl. 5 of the first agreement. If that was indeed the case, the easiest thing for the appellant to have done was to have informed the respondent that the funds were ready and available and that they would be paid across upon receipt of the transfer. There was certainly no necessity for the appellant to have gone through the elaborate process of sending the cheque and then stopping payment on it. So much for the probative value of the point taken. But we would ex abundanti cautela add that even if the appellant had acted in the way suggested a moment ago, it would not have amounted to a valid tender of payment in law, having regard to the terms of the agreement in question.

On 29 July 1993, the appellant commenced proceedings against the respondent for specific performance. The respondent, after delivering its defence on 2 July 1994, applied by way of a summons returnable in chambers to strike out the action. The respondent's application, which is dated the same date as its defence, was made generally under O. 18 r. 19 of the Rules of the High Court 1980. Affidavit evidence was filed in su