The main crux of the plaintiffs claim in this originating summons is for an order that the land held under Padang Serai Lot No 1899, Mukim Sidam Kanan, Padang Serai, Kedah (the said land), now registered in the name of the defendant, be sold by public auction. This is with the intention of realizing the plaintiffs undivided share in the said land to the extent of 15/325 (the plaintiffs share). Also included are prayers for accounts and enquiries to be taken of the defendants financial dealings in the said land.

The plaintiff claims that sometime in 1975, the defendant approached him to buy a share in the said land, which he did. He paid to the defendants solicitors a total sum of RM15,000 and received in return receipts confirming this purchase. He claims that the defendant gave him the impression that the land would be subdivided. Letters from the defendant and/or his solicitors found in exhs P2 and P7 in encl 2 support this view.

In 1985, pursuant to the plaintiffs enquiry on the status of his investment, the plaintiff was informed by the defendant that the said land had been sold, and upon receipt of the purchase price from the purchaser the plaintiff would receive his share of the profits. This did not materialize, causing the plaintiff to demand through his solicitors on 15 August 1992 of the defendant a proper resolution and payment for the purchase of our clients share of the said land at current market value, either by you or a third party.

The defendant replied on 2 September 1993, enclosing a cheque of RM20,000 attempting to pay off the plaintiff. This the plaintiff refused as no agreement was reached on the total sum due to the plaintiff. Since no further settlement was reached between the parties, the plaintiff claimed he was forced to institute this action.

The defendant never denied the allegation of the plaintiff. He explains that he attempted to sell the said land, first to M/S Malland Sdn Bhd (Malland) for a sum of RM2.8m. Unfortunately, he claimed that this sale was aborted compelling him to sue Malland and four others. Instead of allowing his claim, the High Court at Kuala Lumpur awarded to Malland their counterclaim against the defendant for breach of the contract of sale, repayment of the deposit and part payment of RM265,000 and a further sum of RM400,000 being the balance due pursuant to the terms of the revocation agreement and interest thereon as agreed. Dissatisfied with this decision, the defendant has filed his appeal to the Court of Appeal.

Before the decision of the case against Malland was declared in the High Court, the defendant sold the said land to M/S Insular Development Sdn Bhd (Insular) for a sum of RM3m. This transaction too, was aborted, alleged by the defendant to have been caused by Insular breaching the terms and conditions of the sale. Litigation resulted, but this time the defendant succeeded whereupon he benefited with a forfeiture of RM250,000 from the deposit and initial part payment made by Insular towards the purchase of the said land.

The said land is presently registered in the name of the defendant as sole proprietor but is charged to a co-operative society known as NESA. This charge was created in consideration of a loan granted by NESA to the defendant to assist him in purchasing the said land. Out of the loan of RM300,000, the defendant declared that he had repaid RM110,000 and presently in default of further repayments.

The defendant further insisted that he had expended money on the said land for earthworks, cutting grass, clearing rubbish, legal and agency fees and on application for subdivision. The total sum with particulars attached amounted to RM159,250.

Though expressing desire to dispose and sell the said land and repay NESA in full and to account to the plaintiff for his 15/325 undivided share in the proceeds of the sale, the defendant still protests against the plaintiffs prayer for the land to be sold by public auction followed by