Salleh Abas CJ (Malaya):

This is an appeal from the judgment of Datuk Wan Hamzah J given on 6 April 1982 arising out of the respondents' originating summons asking for certain declarations and ancillary orders. The points at issue are these: Principally, whether an agreement dated 19 September 1980 by which the respondents agreed to sell and the appellants to buy a certain immoveable property known as Sharidal Complex was, as contended by the respondents, aborted, i.e. became void on 30 April 1982, through no fault of anyone, or as contended by the appellants is still subsisting entitling them to a specific performance. Alternatively, if the agreement did not become void on that date, whether the respondents were discharged from further performance thereof because of the failure by the appellants to pay the balance of the purchase price within the stipulated time, therefore entitling the respondents to forfeit the deposit paid thereunder. The learned Judge held both the principal and the alternative issues in favour of the respondents and made a number of consequential orders based on the principal issue.

The facts are as follows: The respondents agreed to sell to the appellants the property concerned for a total price of RM8,500,000 and Clause 1 of the agreement provided that in consideration of a sum of RM850,000 paid by the appellants as deposit the respondents agreed to sell the aforesaid property for the price "free from all encumbrances but subject to the existing leases and tenancies and subject to the conditions of title whether express or implied affecting the same and subject to the terms and conditions hereinafter contained." The relevant terms and conditions for the purpose of this appeal are Clause 2, 3, 4 and 13 which are as follows:

2. Immediately upon the execution of this Agreement thereafter -

(a) the Vendor shall execute a valid and registrable Memorandum of Transfer in favour of the Purchaser and/or its nominee or nominees and cause its solicitors to present the same to the Collector of Stamp Duties;

(b) the Purchaser or its Solicitors shall make an application to the Foreign Investment Committee for due approval by the said Foreign Investment Committee of the sale and purchase hereunder; the Vendor shall render all possible assistance and provide such details as are necessary for such application and provided always all monies paid by the Purchaser hereunder shall be returned to the Purchaser in the event that such approval as aforesaid is not given by the Foreign Investment Committee.

3. (i) The Purchaser shall complete the purchase within fourteen (14) days after obtaining the approval from the Foreign Investment Committee as aforesaid or within three (3) months after the date of application to the Foreign Investment Committee as aforesaid pursuant to Clause 3 hereof, whichever is the later, by paying to the Vendor's solicitors, MESSRS. TAN SRI ABDUL AZIZ & CO. of No. 27, Jalan Gereja, Kuala Lumpur the balance of the purchase price amounting to MALAYSIAN RINGGIT SEVEN MILLION SIX HUNDRED and FIFTY THOUSAND (RM7,650,000) out of which the said Vendor's Solicitors shall -

(a) pay such sum as may be necessary to MALAYAN BANKING BERHAD and BANK BUMIPUTRA MALAYSIA BERHAD to obtain the relevant discharges of the said Charges and the documents of title;

(b) retain the sum of MALAYSIAN RINGGIT ONE HUNDRED THOUSAND FIFTY THOUSAND (RM150,000) for the purpose of Real Property Gains Tax Act 1976;

(c) hand over possession of the said Property to the Purchaser; and

(d) thereafter deliver to the Purchaser a valid and registrable Memorandum of Transfer of the said Property in favour of the Purchaser or his nominee or nominees together with the document of title thereto, the relevant discharges of the said Charges and all such other document or documents necessary to effect registration of the said Transfer.

(ii) Upon receipt of the documents referred to in Para. 3 (i)(d) above and upon the receiving of a notifi