Raja Azlan Shah J:

This is an application to dissolve the ex parte injunction dated 7 June 1968 granted by Gill J (as he then was) to the plaintiffs (a) restraining the first, second, third, forth and fifth defendants from parting with or disposing of any of their shares in the Oriental Bank of Malaya Berhad, the sixth defendant, (b) restraining the sixth defendant from registering the transfer of any of the said shares to any persons other than to the plaintiffs. The ex parte injunction was granted before the writ or the statement of claim or any proceedings was served on any of the defendants.

The first five defendants are currently the directors of the said bank. On 4 May 1968 they negotiated with the plaintiffs concerning the sale of their respective shares in the bank. The terms and conditions of the agreement are confirmed in a letter dated 5 May 1968 written by the plaintiffs' former solicitors to the defendants' former solicitors. The plaintiffs claim for specific performance of the agreement and a permanent injunction.

Mr Chelliah for the defendants drew my attention to the terms and conditions of the said agreement which he says are not capable of specific performance. If that is so, he argues that an interim injunction does not lie. He relies on the provisions of s. 20 (a), (b), (c), (d) of the Specific Relief (Malay States) Ordinance, 1950 and the averment that the defendants no longer hold the requisite number of shares. He submits that if he succeeds on any of these grounds he is entitled to have the ex parte injunction set aside.

The principle of law enacted in that section is not assailable but I am doubtful of its application to the present proceeding. It would mean that a successful applicant for an interim injunction to preserve the matters in status quo on the facts relied by him can have that order dissolved cir varied on extraneous facts. In my view the sole object of an interim injunction would therefore be defeated. I have no doubt that at the proper time and place Mr. Chelliah's arguments would be given due consideration but I think this is not such an occasion.

In order to dissolve or vary an ex parte injunction the defendants must satisfy the Court that the facts upon which the injunction was granted no longer exist or that it was obtained by misrepresentation or suppression of material facts. We are here concerned with the former. The said shares are not available in the open market. That is not disputed. Mr. Chung for the plaintiffs relies on the proposition that the Court can order specific performance of an agreement for the sale of shares which are not available in the open market. In i Duncuft v. Albrecht 59 ER 1104 the Court decreed specific performance of an agreement for the sale of railway shares which were limited in number and not always to be had in the open market. But where the shares in question are such that they can be easily obtained from the open market, so that the loss can easily be quantified in money, the Court will not grant specific performance of the contract (see Re Schwabacher, Stern v. Schwabacher, Koritschoner's Claim [1908], 98 LT 127). Applying that it is beyond doubt that the agreement to transfer the bank's shares which are not available in the open market can be specifically enforced, for there is no standard for ascertaining the actual loss which would have been caused by its nonperformance (see s. 11). Here the inconvenience caused to the plaintiffs would be irreparable and could not be remedied by damages.

The defendants have not established that these circumstances have now changed.

Mr Chung has also brought to my notice the delay in filing this application which was made some six and a half months after the ex parte injunction. In my view the time at which this application was made would by itself be an answer to the summons. They had ample facilities to set aside the ex parte injunction. They had thought fit to acquiesce in it for a period of s