Steve Shim J:

There are two applications before me, both by way of originating summons, taken out by the plaintiffs who are husband (in suit 24-384-1997) and wife (in suit 24-385-1997) respectively against the same defendant praying for similar reliefs except for the difference in the amount of refund to be paid by the defendant. The reliefs sought are in respect of a declaration that the respective sale & purchase agreements dated 29 April 1993 between the plaintiffs and defendant had been properly terminated and for the refund of monies paid by the plaintiffs as well as for liquidated damages, interests and costs.

By two separate sale & purchase agreements both 29 April 1993 entered into between the plaintiffs and the defendant, the defendant had agreed to sell two (2) units of condominium known as Parcel No. D-22-5C, storey 22 and Parcel No. D18-8B, storey 18 of Block D, situated at Ampang Hilir Kondominium, Mukim Ampang, Daerah Ulu Langat, Negeri Selangor, to the plaintiffs, subject to the terms and conditions therein. It is the plaintiffs' case that under cl. 22 (1) of the sale & purchase agreements, the defendant was to deliver vacant possession of the two units to the plaintiffs within 36 months from the date of the agreements, ie, on 28 April 1996 but the defendant had however failed to do so thereby breaching cl. 22(1) as a result of which the plaintiffs, through their solicitors, sent letters to the defendant informing of their intention to terminate the agreements and claiming for the refund of monies amounting to RM77,220 and RM33,200 paid to the defendant as well as liquidated damages and interests. The defendant had failed and/or refused to refund as demanded. The plaintiffs subsequently terminated the agreements and thereafter filed the present applications.

Now, in suit 24-384-1997, the defendant has raised the following issues namely, that the plaintiff was not entitled to terminate the sale & purchase agreement and that he was also not entitled to damages thereunder. In suit 24-385-1997, the defendant appears to have raised an additional issue ie, that it had prior to the termination or rescission by the plaintiff, rightfully terminated the agreement and forfeited the deposit on account of the plaintiff's failure or default in paying the progress payment. All these issues are inter-related and can be dealt with jointly.

Here, the plaintiffs have relied on cls. 7 and 22(1) of the sale & purchase agreements as well as s. 56 of the Contracts Act. Clauses 7 and 22(1) stipulate as follows:

7. Time shall be the essence of the contract in relation to all the provisions of this Agreement.

22(1). The said parcel shall be completed by the vendor and vacant possession, with the connection of water and electricity supply to the said parcel, shall be handed over to the Purchaser within thirty-six (36) calender months from the date of this Agreement.

As I have indicated earlier, it is the plaintiffs' contention that the defendant had contravened the provisions of cl. 22(1) above by failing to complete the works and hand over vacant possession of the two units pursuant to the sale & purchase agreements thereby giving rise to a situation in which the plaintiffs had the option of either terminating or rescinding the agreements under s. 56(1) of the Contracts Act and claim for liquidated damages or treating the said agreements as continuing until delivery of vacant possession and sue for damages. I have also said that the plaintiffs did in fact rescind the said agreements and claim for liquidated damages against the defendant. Section 56(1) stipulates thus:

When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should b