Per Edgar Joseph Jr FCJ (Mohd Jemuri Serjan CJSS concurring):

[1] In this appeal, the essential facts which are not in dispute may be shortly stated.

[2] By an agreement in writing dated 13 September 1984 ("the agreement"), entered into by the respondent/plaintiff ("the seller") and the appellant/defendant ("the buyer"), the seller had agreed to sell to the buyer and to install a Jaques crushing plant at the premises of the buyer, at Pedas, Negeri Sembilan, at a price of RM1,167,000.

[3] By cl 3 of the agreement, the buyer had agreed to pay to the seller, an initial sum of RM116,700, being 10% of the purchase price, expressly stipulated therein as a deposit, to be paid upon signing the agreement.

[4] It is noteworthy - in view of the discussion which follows - that the agreement distinguishes between the initial payment of the sum of RM116,700 expressly stipulated in cl 3 therein as a "deposit", and payment of four subsequent sums, namely:

RM 408,450 - "on delivery of prime equipment ie all crushers and screens in this project;"

RM 408,450 - "on delivery of the essential steel structures for crushers and screens support, chuteworks, conveyor frames and ancilliaries;"

RM 175,050 -