Richard Malanjum JCA:

Before us is an appeal by the appellant/defendant ('defendant') against two decisions of the learned judge in the court below.

The first decision ('the first decision') is in respect of the granting of summary judgment pursuant to O. 81 of the Rules of the High Court 1980('RHC') to the respondent/plaintiff ('plaintiff) for the refund of the sum of RM608,751 ('the deposit') being the deposit paid by the plaintiff as the purchaser to the defendant as the vendor in connection with the sale and purchase agreement dated 21 July 1997 ('the agreement') for a piece of an industrial land held under GM 443 Lot 1010 in the Mukim of Cheras in the district of Hulu Langat ('the said land').

The second decision ('the second decision') is in connection with the application by the defendant for summary judgment on its counterclaim under O. 14 of RHCto remove the caveat of the plaintiff lodged against the said land. Based on the preliminary objection of the plaintiff the learned judge dismissed the application.

The pertinent terms in the agreement are as follows:

(a) that by cl. 1(a)(i) the deposit represented 10% of the purchase price of the said land;

(b) that by cl. 1(a)(ii) the balance was to be paid to the defendant's solicitors as stakeholder within six months from the date of the agreement which was on or before 20 January 1998;

(c) that by cl. 1(b) the defendant expressly agreed to allow the plaintiff an automatic extension of two months to settle the balance of the purchase price;

(d) that by cl. 6, the defendant had the right to forfeit the deposit paid in the event of the plaintiff failing to observe cl. 1 of the agreement, that is, the payment of the balance of the purchase price;

(e) that by cl. 14 time was of the essence of the agreement;

(f) that cl. 16 of the agreement stipulated, inter alia,

(i) that it was conditional upon:

(a) the relevant consent/approval being obtained from the Foreign Investment Committee (FIC) for the sale of the said land within three months from the date of the agreement, that is, by 20 October 1997 - (sub-cl. 16(a)(i) and (b)); and

(b) the successful removal by the defendant of the private caveat of one Haji Mohd Shahir bin Haji Sanawi. And it was the obligation of the defendant to apply for the removal at its own costs within three months from the date of the agreement - (sub-cl. 16(a)(i) and (c));

(ii) that in the event of the consent/approval not obtained or rejected within the stipulated time through no fault of either party then the plaintiff had the option of either:

(1) to grant an extension of time for a duration it deemed fit; or

(2) to terminate the agreement in which event all monies paid to the defendant would have to be immediately refunded to the plaintiff free from any interest and the agreement would be deemed cancelled and of no effect - (sub-cl. 16 (d)).

(g) that by cl. 17 the defendant authorised and consented to a private caveat to be lodged by the plaintiff against the said land to prevent any further dealings affecting the same; and

(h) that by cl. 20 any notice, request or demand requiring to be served by either party to the other under the Agreement would have to be in writing and would be deemed to have been sufficiently served.

In order to comply with cl. 16 of the agreement, the steps taken were as follows:

(i) On 6 August 1997 the solicitors for the plaintiff applied to the FIC for the consent/approval on the sale of the said land;

(ii) The FIC replied to the application by a letter dated 17 October 1997 which was received by the plaintiff on 22 October 1997 after the expiry of the three months period stipulated in the agreement. In the said letter FIC attached a condition:

... FIC tiada halangan terhadap cadangan seperti di perenggan 1.1 tertaluk kepada syarat Dynamic Mould Sdn. Bhd. mengadakan sekurang-kurangnya 30% ekuiti Bumiputera sebelum 31.12.1998.

(iii) that despite the expiry of the period the solicitors for the plaintiff by way of app