Su Geok Yiam JC:

This is an appeal to the judge in chambers (encl. 22) against the decision of the learned senior assistant registrar dated 14 May 2001 dismissing the defendants' application (encl. 7) to stay all proceedings pending the reference to arbitration of what the defendants claim are disputes arising from an agreement in a case involving goods sold and delivered.

Facts And Background

Before I deal with the issues which have arisen for my determination in this appeal it is necessary that I narrate the relevant facts which are simple and uncomplicated and also the background first.

The Plantiffs' Writ Of Summons And Statement Of Claim

The plaintiffs' claim is for goods sold and delivered.

On 3 April 2000, the plaintiffs took out a writ of summons (encl. 1) against the defendants claiming a sum of RM369,040.39 representing the amount which the defendants are indebted to the plaintiffs for fertilisers sold and delivered to the defendants. The plaintiffs are also claiming interest thereon at 8% per annum from the date of their notice of demand, ie, 21 February 2000, until full settlement.

In their statement of claim the plaintiffs have alleged, inter alia, that they had accepted a written offer from the defendants dated 26 January 1999 to supply to the defendants in the year 1999, RM742,992.51 worth of fertilisers. Both parties then executed a written agreement dated 28 January 1999 ("the contract") to that effect. The contract period was from 28 January 1999 to 30 December 1999.

According to the plaintiffs, as at 31 January 2000 there was a sum of RM369,040.39 which was still owing and payable to the plaintiffs for fertilisers delivered to the defendants by the plaintiffs in accordance with the terms and specifications contained in the contract. The plaintiffs have set out the details and particulars of this sum in para. 6 of their statement of claim.

The Plantiffs' Amended Writ Of Summons

About five months later, on 30 August 2000, the plaintiffs filed their amended writ of summons (encl. 4). As there are only three minor amendments which do not concern the subject matter of this appeal the court shall not deal with them here.

The Defendants' Unconditional Appearance

On 6 October 2000, the defendants, through their solicitors, M/s Gideon Tan Razali Zaini, entered their unconditional appearance videtheir memorandum of appearance (encl. 5). This fact is significant in view of cl. 22 of the contract which provides that any dispute or difference of opinion between the two contracting parties shall be referred to arbitration in accordance with the Arbitration Ordinance 1950 or any other relevant law in force at that time.

The Plaintiffs' Application For Summary Judgment

In my view, the plaintiffs' claim being the run of the mill claim for goods sold and delivered, in a normal situation it should have come as no surprise to the defendants when five days later, on 11 October 2000, the plaintiffs applied videsummons in chambers (encl. 6) for summary judgment to be entered against the defendants pursuant to O. 14A of the Rules of the High Court 1980(the RHC) for a sum of RM369,040.39, interest thereon at 8% per annum from 21 February 2000 until the date of full settlement, costs and any further relief deemed suitable by the court.

The plaintiffs anchored their application on the defendants' breach of the contract in failing to comply with their demand to pay to the plaintiffs, a sum of RM369,040.39 being the contract price for fertilisers sold and delivered to the defendants.

The plaintiffs have averred that the defendants have no defence on merits to their application. In support of their application, the plaintiffs, through their director, Voon Chee Keong, affirmed an affidavit (encl. 6A) setting out the facts and background leading to their claim for summary judgment.

The plaintiffs have exhibited, inter alia,the contract and invoices and debit notes for the fertilisers which they say have been supplied to the defend